Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5016

1 Friday, 21 November 2003

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.03 a.m.

6 JUDGE LIU: Call the case, please, Mr. Court Deputy.

7 THE REGISTRAR: Good morning, Your Honours. This is Case Number

8 IT-02-60-T, The Prosecutor versus Vidoje Blagojevic and Dragan Jokic.

9 JUDGE LIU: Thank you very much. Before the cross-examination,

10 are there any matters that the parties would like to bring to the

11 attention of this Bench? Well, I have a scheduling issue to discuss with

12 the Prosecution. Yesterday, we received that list of the potential

13 witnesses in this case before the winter recess. And we have been told

14 that like all the offices, everybody wants to clean their table before the

15 winter recess, so this Tribunal will have a very busy schedule before the

16 winter recess. And because of the problem of the courtroom, we have to

17 cancel a hearing, a sitting, on the 15th of December. So my question is

18 whether it's possible to move that witness designated for that day

19 somewhere to the previous week, or is it possible for us to hear four

20 witnesses in four days for the last week?

21 MR. McCLOSKEY: Good morning, Mr. President. As you know, there's

22 always a certain amount of tentativeness in this because we're not sure

23 how long that first week of December will take. The witnesses that we

24 have for that week of 15 December, one is a Dutch soldier who I believe is

25 in Holland so he should be relatively simple to move around. The others

Page 5017

1 are Bosnian Muslims, and none of them should be really very long. So I

2 think we have a fair amount of flexibility there, and we will try to make

3 the most of it, of course.

4 JUDGE LIU: Thank you very much.

5 Yes, Ms. Sinatra.

6 MS. SINATRA: Yes, Your Honour, this is not my witness but I'd

7 like to address the Court on the cross-examination of Mr. Butler.

8 Mr. Stojanovic will need a full two days of cross-examination for

9 Mr. Butler, so I just wanted to make sure that the Court was aware that he

10 will need that amount of time.

11 JUDGE LIU: I see. Mr. Karnavas.

12 MR. KARNAVAS: Yes, I was asked whether I could finish today. I

13 informed Ms. Sinatra that I was not going to be able to do, nor would I

14 rush the cross-examination for the sake of someone else's scheduling. We

15 lost a session yesterday. And by my estimation, I will need the full day

16 on Monday. And that is streamlining it, and I know it seems like a lot of

17 time, but when we keep in mind the gentleman has generated four reports,

18 testified for five days, testified in the Krstic case, and we have all

19 these other documents that were introduced by the Prosecution, in my

20 normal practice I would be cross-examining the gentleman for about three

21 weeks. Very easily. I know it seems odd, but I would. So I have

22 streamlined it, and I think we're making progress. But I can assure you,

23 Your Honours, that I will not be able to finish today. But I promise to

24 finish on Monday, but I will need the full day on Monday. And I think

25 that would also assist Mr. Stojanovic in not having to break his cross. I

Page 5018

1 understand he's got two days, and then, of course, there would be -- I

2 would suspect there might be some redirect and questions from the Bench

3 which probably -- I don't know if it will take two full days, but I think

4 probably the rest of the week. And I don't know where that leaves

5 Mr. Manning, but according to Mr. McCloskey, Mr. Manning would not be

6 coming on. If we could not fit him in, he would be brought back at a

7 latter point.

8 Again, I would stress that this witness is an important witness to

9 this entire case. When we consider that life sentences are being sought,

10 at least for one of the accused, this is not the kind of witness that we

11 should try to expedite the cross in order to meet some scheduling problems

12 that we may have in the future.

13 Lastly, with respect to the witnesses that were mentioned by you,

14 Mr. President, of the last week, I concur with Mr. McCloskey. I don't

15 foresee very much cross, if any, at least on our part. And I think it's

16 not possible, but probable in all likelihood that we can accommodate the

17 scheduling of that.

18 And also, I'm fully willing to go full days. I don't know about

19 the rest, but I'm fully, you know -- if we have the facilities available.

20 JUDGE LIU: Well, thank you very much for your information. And

21 originally, we planned to finish the testimony of this witness by next

22 Tuesday. But now, it seems to me that is not possible. So I believe that

23 we have to discuss with the Registrar about the further arrangements of

24 this hearing. But I want to remind the parties that as I said before,

25 that during the end of the year, we have a very, very tight scheduling in

Page 5019

1 this Tribunal. It seems to me that there's so many hearings and it's very

2 difficult to get a courtroom for extra time sitting.

3 Well, let us discuss it with the Registrar during the break to see

4 if there's any further arrangements for that.

5 Yes, Ms. Sinatra.

6 MS. SINATRA: Of course, Your Honour, we are offering to accept

7 Dean Manning under 94 bis (D) or (C). I think that would save the Court's

8 time. And documents, we have no problems with the admission of his

9 forensic reports, if the Court would reconsider that offer. Also, on the

10 last week, there is only one witness that I know is fairly important to

11 the Defence of Mr. Jokic, and that's another intercept witness. The last

12 witness will need to be cross-examined. I don't know at what length until

13 we hear his direct testimony, but he will need to be cross-examined.

14 And then of course the week of December 1st are the most important

15 witnesses, the Zvornik Brigade engineering company soldiers who will be

16 here. So I'm not sure that those are going to be short witnesses, Your

17 Honour. I just wanted the Court to be prepared that these are very

18 important witnesses to Mr. Jokic's Defence. And we will probably in all

19 likelihood in each one of those listed, they're protected witnesses, we

20 will need a full day for direct and cross-examination of those witnesses.

21 JUDGE LIU: Thank you very much for your good suggestion. But

22 concerning with Mr. Dean Manning's testimony, I believe this Trial Chamber

23 has made a decision already. And as far as I understand, some of the

24 December 1st week witnesses are the 92 bis live witness which means that

25 the direct examination won't take much long time, and I will give you

Page 5020

1 enough time to cross-examine those witnesses.

2 Well, having said that, let's start the cross-examination.

3 Mr. Karnavas.

4 By the way, we received a new list every day. It seems that you

5 are very diligent to furnish us with those new lists. And it really keeps

6 growing.

7 MR. KARNAVAS: Well, I guess we shouldn't be deceived by

8 appearances, Your Honour. Just because the list grows doesn't mean that

9 the cross-examination is growing.

10 Good morning, Mr. President, Your Honours.


12 Cross-examined by Mr. Karnavas: [Continued]

13 Q. And good morning, Mr. Butler.

14 A. Good morning, sir.

15 Q. Now, I would like to pick up from where we left off yesterday. If

16 we could go to the question and answer, and I have a clean copy of

17 yesterday's transcript. So if we could just look at the -- I'll hand it

18 to you and you can flip to page 70. It's the question -- you can just

19 look at the question, and I'll paraphrase it. Page 70. It's at the

20 bottom, line 23. I basically ask when all three of the -- are in the

21 building, that is the Main Staff, the Drina Corps, and the commander of

22 the Bratunac Brigade, who is actually exercising command and control? And

23 you gave us an answer, and I think it would be worth maybe if you could

24 read that answer again, and then we can discuss that. If you want to read

25 it aloud.

Page 5021

1 A. I can put it on the ELMO, also.

2 Q. You can put it on the ELMO.

3 A. It will be page 71.

4 Q. And it's line 2.

5 A. Starting on line 2. And the answer is: "It depends on what

6 echelon formation forces that we're talking about. The argument can be

7 made that wherever General Mladic is, he exercises command and control.

8 And as the commander of an army, that is in a broad sense exactly what

9 happens. However in the more stratified environment or military

10 environment, commanders are going to exercise command and control

11 generally within their competencies of command.

12 "So while certainly there are going -- there are going to be

13 instances where General Mladic will give orders to officers that may be

14 one or two echelons below him. The fact that General Mladic is in command

15 and in control in Bratunac doesn't mean that suddenly General Zivanovic

16 isn't. And when General Zivanovic is in command and control ..."

17 THE INTERPRETER: Will the speaker please slow down when reading?

18 A. ... It doesn't mean that Colonel Blagojevic isn't. It's no

19 absolute in this issue.

20 Q. Okay, so I take it what you're saying is that it all depends on

21 the circumstances?

22 A. I would say less on the circumstances. There's actually, going

23 back over the former JNA doctrine, there's actually a better term of art

24 to use which is the one that they use which is considered to be first

25 instance superiority, second instance superiority, and third instance, and

Page 5022

1 it continues up. And it reflects the fact that while in the model that

2 they use, a company commander may be the first instance superior, the

3 battalion commander is the second instance superior, the brigade commander

4 up. So it's not necessarily situation-dependant. The military

5 situation -- or the military organisation tries to follow within the

6 confines of how it's organised.

7 There will be instances, obviously, where a superior commander can

8 and does give orders to soldiers one or two echelons below. But by and

9 large, the system is designed is that the orders will be properly

10 transmitted within the organisation.

11 Q. Okay. That's under optimal conditions. Correct?

12 A. The system is designed to operate in a wartime environment, and it

13 is generally recognised that in a wartime environment it's not optimal

14 conditions.

15 Q. Well, that's what -- well, what I meant was -- well, the rules are

16 designed to meet those needs when you are in a wartime situation, are they

17 not?

18 A. Yes, sir.

19 Q. Okay. Now, just breaking down your answer before I go on to my

20 next set of questions, you say "within the more stratified environment or

21 military environment." Is that what we had on the ground over there as

22 General Mladic was ordering soldiers, not officers one or two echelons

23 below him, but soldiers on what to do?

24 A. When I used the phrase "stratified military environment," I use it

25 to compare the fact that particularly to people without military

Page 5023

1 backgrounds, some of the organisational idiosyncrasies that occur in a

2 military, that people tend to transmit over to civilian apparatuses.

3 Military organisations are designed to operate in a regimented and

4 stratified manner and don't necessarily show the same flexibility or the

5 same ability of a superior to task subordinates as common as civilian

6 structures or organisations, like a business, for example.

7 Q. Okay. But was that happening on the ground during those days when

8 Mladic was there?

9 A. There is evidence that Mladic was giving orders to individual

10 officers and soldiers, so yes.

11 Q. In fact, we had testimony in one instance where apparently

12 General Mladic, in order to motivate a lieutenant colonel from the

13 security -- the assistant commander of the security of the Drina Corps, he

14 was even kicked in the rear end in front of other soldiers. Is that

15 within the stratified environment or military environment? Is that the

16 sort of conduct you would expect of the highest commander?

17 A. Certainly it is a poor leadership trait.

18 Q. Okay. Now, getting back -- let's get back to my initial question.

19 Who's in command at those headquarters? You have Mladic over is there,

20 and he certainly has some of his staff, does he not?

21 A. I believe that depending on the day, there are between two and

22 four people from the Main Staff who are with Mladic. I'm not counting for

23 sake of staff the two Main Staff individuals who were doing filming. So

24 I'm generally -- between two and four of Main Staff officers depending on

25 whether it was the 12th or the 13th.

Page 5024

1 Q. All right. And one of those that you might be referring to is

2 Colonel Jankovic. Is that correct?

3 A. Yes, sir, that is correct.

4 Q. And in fact, at least if we can accept Mr. Nikolic's testimony on

5 this particular issue, he has testified that Colonel Jankovic appeared at

6 the Bratunac Brigade headquarters and took office in his office as, I

7 believe, early as July 8th, 1995. Are you aware of that information?

8 A. I am aware of the information. Again, like I said, my evidence is

9 based on the video where we have him there on the 11th. He could have

10 arrived earlier.

11 Q. Okay. Aside from General Mladic, we have General Zivanovic who,

12 in those days, was still the commander, do we not?

13 A. Yes, sir.

14 Q. And with him is his chief of staff. Correct?

15 A. That is correct, sir.

16 Q. And so you have the number one and the number two of the Drina

17 Corps in the Bratunac area, in the Bratunac headquarters, on the 11th and

18 12th, and perhaps sometimes on the 13th as well, do we not?

19 A. Yes, sir, generally speaking.

20 Q. And aside from those two, were there others from the Drina Corps

21 staff?

22 A. There were a number of officers from the Drina Corps staff,

23 probably upwards of ten.

24 Q. Okay. And how many of those officers were assistant commanders?

25 A. At various times, I believe all three of the assistant commanders

Page 5025

1 of the Drina Corps were present.

2 Q. All right. And who were they, if you could tell us?

3 A. That would be Colonel Cerovic who would be the assistant commander

4 of morale, legal, and religious affairs.

5 Q. All right.

6 A. The Lieutenant Colonel Popovic, the assistant commander for

7 security.

8 Q. Okay.

9 A. And Colonel Acamovic who is the assistant commander for rear

10 services.

11 Q. All right. Where does Kosoric fit into this?

12 A. Kosoric is the chief of intelligence, so he falls into the

13 operative staff. He is not an assistant commander.

14 Q. Okay. Now, did Acamovic play a role during these days?

15 A. Yes, sir, it is my understanding that on a number of occasions,

16 members of DutchBat talked to him with respect to issues of fuel and

17 transportation.

18 Q. And he would be the logical person because that would fall within

19 his branch, rear services. Correct?

20 A. Yes, sir.

21 Q. All right. Now, we touched on the meeting -- we touched on that

22 meeting, a little bit, the first one. And I think we agreed that on that

23 meeting, General Mladic was in command and control. What about the second

24 meeting when the discussions are going on as to what will happen with all

25 of the people that have gathered in Potocari? Who is in command and in

Page 5026

1 control at that time?

2 A. General Mladic certainly dictated that meeting. I don't believe

3 any other VRS officer spoke.

4 Q. And at the conclusion of that particular meeting, were you able to

5 make some sort of a conclusion as to what General Mladic had represented

6 to those with whom he was meeting?

7 A. Insomuch as General Mladic he directed that the transportation was

8 going to begin at a certain time, yes, sir. I mean, that was fairly

9 evident from the video.

10 Q. Okay. Now, it seems to me from the second meeting, there was a

11 request or some discussion with the UN as to whether the UN would be able

12 to facilitate the transfer of those who wished to leave. But for

13 logistical purposes, they were unable to do so. Am I correct?

14 A. Yes, sir, that is correct.

15 Q. All right. And now we have the third meeting. The third meeting

16 is on the morning of the 12th. Correct?

17 A. Yes, sir, that would be 1000 hours on 12 July.

18 Q. And so before we get to the third meeting, would not one expect

19 that in light of the discussions from the second meeting, that some

20 preparations would have begun to put forward the plan for the evacuation

21 of those who wished to leave Potocari?

22 A. Yes, sir, and in fact I believe the documentary evidence that we

23 have indicates that.

24 Q. All right. But that would be a natural event. One would expect

25 that under the circumstances, would they not?

Page 5027

1 A. Yes, sir.

2 Q. Particularly given that it was the summer. Correct?

3 A. That is correct, sir.

4 Q. It had been hot in those days. Correct?

5 A. Yes, sir.

6 Q. The DutchBat had very little food and water to provide for those

7 who had gathered in Potocari. Correct?

8 A. Certainly the number of people vastly outstripped their own

9 capacity to do anything with them, yes, sir.

10 Q. And if it was not deemed a humanitarian crisis, one was looming at

11 least not far behind?

12 A. Yes, sir.

13 Q. Okay. And so on the 12th of the morning, we have the third

14 meeting. And again, I believe you would conclude that Mladic was in

15 command and in control. Correct?

16 A. Yes, sir, again he dictated all of the events.

17 Q. All right. Now, he not only dictated what the terms, if I could

18 put it that way, the terms to those with whom he was meeting, but would it

19 be fair to say that he also dictated the orders of which he wished to have

20 his lower echelon carry out?

21 A. Yes, sir.

22 Q. All right. Now, before we get to that, there are some -- let's

23 talk about Potocari. We do see General Mladic going to Potocari on the

24 12th, do we not?

25 A. Yes, sir, I believe there is video evidence of that.

Page 5028

1 Q. All right. Now I think we can all agree that in part, that was a

2 propaganda event. Mladic being seen there as the general who had finally

3 been able to capture Srebrenica. Correct?

4 A. Yes, sir. I mean, obviously he was mugging for the cameras.

5 Q. All right. And with him one would expect to find military police

6 from the Bratunac Brigade as his security and as the rules required for

7 the Bratunac Brigade to provide such security for a top echelon such as

8 General Mladic. Correct?

9 A. Yes, sir. I mean, in fact, you see not only that, you see General

10 Mladic's own personal security, his close-in security detachment.

11 Q. Who is in command and who is in control of the people that have

12 gathered in Potocari on the 12th?

13 A. I would say overall responsibility rests with General Mladic.

14 Q. All right. And of course, again, he's going to issue tasks to the

15 lower echelon to carry out his particular orders. Correct?

16 A. Yes, sir. That's an application of the chain of command.

17 Q. And at that point in time, at that point in time, General Mladic

18 had, in fact, had he not, openly pronounced that it would be a safe

19 evacuation?

20 A. I'm not sure whether that was his pronouncement or whether that

21 was General Krstic's on the video because he made the same type of

22 announcement. There may be a second one from Mladic I'm unaware of.

23 Q. Well, let's backtrack. In the past, during those meetings, he had

24 made such pronouncements, had he not?

25 A. I believe that he did effectively say that the people would be

Page 5029

1 given a choice. I'm not sure if issue of safety came up, but I assume

2 there would be safe conduct on that one.

3 Q. The implication being that they would be able to leave, those who

4 wished to leave. He was not going to block them. Correct?

5 A. That is correct, and he indicated that the disarming process also

6 had to occur.

7 Q. Right. He had some conditions on that.

8 A. Yes, sir.

9 Q. And I take it those listening to him at the time would come away

10 with some conclusion, would they not?

11 MR. McCLOSKEY: Objection. Which time? He talks a lot those

12 days.

13 JUDGE LIU: Yes.

14 MR. KARNAVAS: General Mladic is making --

15 JUDGE LIU: I understand that, you know, Mr. Karnavas is asking

16 the question according to that logic. But, Mr. Karnavas, if you could be

17 more specific, I believe that it would be helpful.

18 MR. KARNAVAS: I will, Your Honour. I will.

19 Q. When General Mladic was openly stating that nothing would happen

20 or that they would be free to go, one who was listening would walk away

21 with the conclusion that General Mladic was, in essence, guaranteeing the

22 safe evacuation of these people, would they not?

23 A. Yes, sir, I think that's a fair assumption.

24 Q. Okay. Now, General Mladic doesn't stick around from the 11th all

25 the way to the 15th, 16th, 17th in Bratunac. He comes and he goes,

Page 5030

1 correct?

2 A. My understanding is that he was in and around the Bratunac area

3 until late afternoon 13 July. And again, his whereabouts after that,

4 apparently there are three different versions of that floating around.

5 Like I said, I don't know that he comes back at a point in time.

6 Q. All right. But we do see him around the vicinity where certain

7 activity is occurring, I think as late as the 15th, do we not?

8 A. Again, my understanding is that the best evidence is that on 15

9 July, General Mladic is in Belgrade.

10 Q. Okay. All right.

11 A. He is meeting with the contact group, and they would presumably be

12 in a position to know if he wasn't there.

13 Q. Okay. After General Mladic leaves, I take it General Zivanovic,

14 up until the time that he's replaced, he's the next in line as far as who

15 is in command and who is in control. Correct?

16 A. Well, again, your point, Mr. Karnavas, is the fact that

17 General Mladic is there as the commander on the ground does not mean that

18 de facto General Zivanovic is somehow not the Drina Corps commander and is

19 not himself exercising command and control within his own competencies.

20 Q. Okay.

21 A. It's not an either/or situation.

22 Q. All right. Let me give you an example. General Mladic gives an

23 order that he wants the rear services of the Drina Corps to provide for

24 the transfer of those who have gathered in Potocari, women and children,

25 let's say, we'll stick with that, to the safe areas. Okay? Now, that

Page 5031

1 order gets passed down directly to Zivanovic, so Zivanovic has to act on

2 it, does he not?

3 A. Yes, sir.

4 Q. All right. Then let's say Zivanovic then goes to his rear

5 services assistant commander, that would be Acamovic, who we know was

6 there, and says "make this happen." Correct?

7 A. He would essentially give the commander the guidance to do that.

8 Hopefully it would be more than just "make this happen." But depending on

9 how specific General Mladic's guidance was, it could be that.

10 Q. Now, were there in Bratunac, in the Bratunac headquarters, you've

11 already indicated that's the forward command post of the Drina Corps at

12 that point in time. Now, if Acamovic were to then go to the rear

13 services, directly to the rear services of the Bratunac Brigade and give

14 an order, would that not -- would that order not be an extension of the

15 order given by General Mladic?

16 A. Yes, sir. And in fact, what you've just described is almost the

17 proper working of the chain of command.

18 Q. All right. Because they don't need -- they don't need to go to

19 the commander of the Bratunac Brigade in that instance because of the

20 concept of functional relationships. Correct?

21 A. As long as the order would not impact other broader areas. And

22 again, the key person in this part of the argument would be the

23 Bratunac Brigade chief of rear services, Major Trisic, who would be the

24 one to recognise that whether this is an order in that functional

25 relationship which he could implement on his own, or whether this is

Page 5032

1 something that would have to go back through his commander because it

2 would require assets and resources outside of his scope. So that's -- the

3 key person in that would be, then, Major Trisic.

4 Q. Okay. Now, to make it clear to everyone here, let's go to the

5 rules, because I think the rules give us some guidance, but I think we are

6 on the same wavelength on this one. If we could turn to D84, which is a

7 segment from the Prosecution's evidence P394. It's the manual for the

8 work of commands and staff. It's a draft 1983. You referred to it,

9 Mr. Butler, and I'm sure you have studied it. I just made a little

10 excerpt. If you feel more comfortable with your entire volume --

11 A. Which page are you referring to, sir?

12 Q. We're going to go step by step. Step by step.

13 A. Okay.

14 Q. Okay. Do you recognise this document, sir?

15 A. Yes, sir.

16 Q. Okay. And in fact, you've made references to this document which

17 is titled "manual for the work of commands and staff." Correct?

18 A. Yes, sir.

19 Q. Okay. Now, if we turn to the first page, it's page 5, but

20 actually it's the -- if we look at the title of it, it's just an

21 introductory page. And we look at the second paragraph, and I'll just

22 read it. It's very short. It says: "The manual is to be used in the

23 work of commands and staffs, institutions for all command and staff

24 operations in the training of commanding officers, commands, and staffs

25 and units and in the education process in the military schools." Do you

Page 5033

1 see that?

2 A. Yes, sir.

3 Q. And basically this manual is the manual on how to command.

4 Correct? It's a draft at this point, but in essence, I think that's all

5 we have and that's what you have been making references to. Correct?

6 A. More than just how to command; it explains in detail the command

7 and staff relationships with each other. And again, there are significant

8 language with what you have called, you know, the proper term, functional

9 relationships between higher and lower staffs.

10 Q. All right. So that's what I want to go through because I think we

11 need a very clear record on this. Although again, I think we're on the

12 same wavelength. If we turn to the next page, it would be page 13. And

13 as you could see, this is chapter 1. It's the chapter on functions of

14 control and their interdependence. And we can go down to paragraph 3, we

15 see that it's about -- this paragraph deals with the issue of control:

16 Correct?

17 A. Yes, sir.

18 Q. And you've read this, have you not?

19 A. Yes, sir.

20 Q. All right. Before we get to it, it makes sense, you having a

21 military background, even though you come from a different military

22 structure, when you read these guidelines, it make sense as -- these

23 rules, don't they?

24 A. Yes, sir. They very much dovetail with what I would call

25 universal dictates among militaries.

Page 5034

1 Q. Okay. So we have: "Control is a function" -- I'll just read it,

2 paragraph 3. And I'm referring to again, for the record, D84. "Control

3 is a function (activity) of the organisation of the armed forces whose aim

4 is to direct individuals, organisational units, and armed forces as a

5 whole in the execution of the goals and tasks that have been set."

6 Now, I'm going to skip the rest and go to the next portion of the

7 same paragraph. It says: "Control in the armed forces is essentially

8 characterised by two forms: Control as a social relationship and control

9 as a work process of commanding officers and commands/staffs and other

10 organs."

11 You agree with that, do you not?

12 A. Yes, sir.

13 Q. Okay. And what exactly does that say in plain language?

14 A. In plain language, the control as a social relationship is a, I

15 believe what they described is that's a face-to-face orders process. The

16 control as a work process of commanding officers and commands and staffs

17 and other organs is the military process by which the complex functions of

18 an army work through a command and his staff.

19 Q. Okay. In fact, if you went one paragraph further down within

20 paragraph 3, it says: "Control as a social relationship expresses the

21 class essence of the relationship between the superior and his subordinate

22 manifesting..." And it goes on and on.

23 Now if we go to number 4, paragraph number 4, it says: "Three

24 kinds of relationships are essentially manifested in the control system in

25 the armed forces: One, command relationship; two, functional

Page 5035

1 relationship; and three, staff relationship."

2 And if we turn to the next page, it then goes on and it says on

3 paragraph 5: "The command relationship is based on the principles of

4 unity, unity of command and subordination; it is defined in the

5 relationship between the superior and his subordinate."

6 So now I think this is the universal principle that we have been

7 talking about that should, and in all likelihood does, exist in every

8 organised army. Correct?

9 A. Yes, sir.

10 Q. If you go further down in the next paragraph, but still within

11 number 5, it says, and I'm reading from the second line: "It is an

12 obligation to execute the tasks set by one's superior or competent

13 officers and organs in an accurate and proper manner and to act in

14 accordance with the military regulations in their execution."

15 You would agree with me. Correct?

16 A. Yes, sir.

17 Q. And in fact, they even say, if you don't do it - within that same

18 paragraph - you have disorganisation?

19 A. That is correct, sir.

20 Q. In fact, we saw a little bit of disorganisation after the fall of

21 Srebrenica as a result of some of General Mladic's -- how shall I say

22 it -- unorthodox behaviour in command?

23 A. I would disagree with that.

24 Q. Okay.

25 A. Again, it was for me an excellent example of where a commander was

Page 5036

1 making a decision and where his subordinates believe that it was the

2 incorrect decision and talked to him about it, and he modified his order.

3 Q. I'm not talking about just that one. I'm talking in general,

4 where he's fading in and he's fading out of the picture.

5 MR. McCLOSKEY: I'm sorry, objection.

6 THE WITNESS: I disagree.

7 MR. McCLOSKEY: We need some specificity. That's vague.

8 MR. KARNAVAS: The witness seemed to understand me, Your Honour,

9 and I'm sure Mr. McCloskey does as well.

10 JUDGE LIU: Well, Mr. Karnavas, I think that request is

11 legitimate. You have to lay some specific grounds for that.

12 MR. KARNAVAS: All right.

13 Q. We have Colonel Beara coming into the picture at some point, do we

14 not?

15 A. I believe he comes into the picture as early as -- or at least as

16 early as I see him is approximately 1000 hours on 13 July.

17 Q. Okay. And he's from the Main Staff?

18 A. Yes, sir, that is correct.

19 Q. At the same time you have staff officers of the Drina Corps around

20 there. Correct?

21 A. Yes, sir, that is correct.

22 Q. Okay. Now, going to the functional relationships, it says:

23 "Functional relationships are established by the organs of the command

24 staff or other commanding officers in order for the tasks to be executed

25 in a coordinated manner."

Page 5037

1 THE INTERPRETER: Could you please slow down for the

2 interpretation.


4 Q. If we skip further down, it says: "Functional relationships are

5 established by the organs of the command/staff and other organs

6 participating in the execution of the task. The task in its entirety and

7 the set of activities determine the level of functional connections.

8 Functional relationships are the basis for the organisation of cooperation

9 and collaboration and for coordination in the course of the execution of

10 missions."

11 Now, in order to understand that, let's go down to staff

12 relationships and see how these two interrelate and how this principle

13 fits within the context in which we first raised it with respect to the

14 rear services back on July 12th, 1995.

15 It says here: "Staff relationship is the established manner in

16 which work is carried out and relationships formed within the command,

17 manifesting the relationship between the decision-maker" and then it goes

18 on, presidency, committee, commander, chief, director, et cetera, "and

19 other organs which carry out analyses necessary for the decision-making or

20 monitor and assess the situation in the course of the execution of the

21 task."

22 Now, if we go to the very last paragraph within paragraph number

23 7, it says: "Staff relationships between command organs and staffs at a

24 higher and lower organisational level are, in fact, functional

25 relationships governed by the principle of obligatory action in accordance

Page 5038

1 with the requests of the staff organ of the superior command for the

2 purpose of implementing the decision made by the superior commander."

3 Now, when we look at that and we go back to where we started, at

4 my example, Acamovic, who is the assistant commander of the rear services,

5 receives his order from his commander, General Zivanovic. Correct?

6 A. Yes, sir.

7 Q. Now, he can then, because he is the assistant commander of the

8 rear services, he can go to a lower level within the same branch, the same

9 organ, call it what you will, that is, the rear services, and go directly

10 there and give an order as long as it is within the confines of the order

11 given to Acamovic by Zivanovic. Correct?

12 A. Yes, sir, that's a proper explanation of a functional

13 relationship.

14 Q. Okay. And in doing so, Acamovic can bypass completely the

15 commander of the Bratunac Brigade as long as, with the caveat that you

16 injected, the order that is given to the assistant commander of rear

17 services of the Bratunac Brigade is within the confines of the general

18 order given to him by his superior?

19 A. No, sir, I would disagree with the bypass.

20 Q. Okay. Well, do they need to give him -- do they need his

21 authorisation?

22 A. He needs to be aware as the commander. And authorisation

23 depending on the task and functions is situation-dependant. They may.

24 The thing to remember in this programme is that the brigade staff exists

25 for the benefit of the brigade commander. The brigade staff or the lower

Page 5039

1 staff is not a subordinate organ of a higher staff. So there is no

2 divorcing that process.

3 Q. All right. Do you know what a backslider is, Mr. Butler? Someone

4 who goes forward and then slides back. And I think that's what you've

5 just done.

6 JUDGE LIU: Yes, Mr. McCloskey.

7 MR. McCLOSKEY: Objection, we're back to silly barbs. That's not

8 necessary.

9 JUDGE LIU: Mr. Karnavas, do not make any argument with the

10 witness.

11 MR. KARNAVAS: I'm not arguing, Your Honour. I'm merely

12 demonstrating that the gentleman before knowing where I was going

13 committed himself to a position. Now he's sliding back because his

14 colleague there -- he wants to advocate the Prosecution's case because he

15 is a member of the Prosecution. That's what I'm demonstrating.

16 JUDGE LIU: Now, whether or not the witness slides back, and we

17 could see it from the transcripts.

18 MR. KARNAVAS: I agree, Your Honour. I apologise. I will

19 continue.

20 JUDGE LIU: Yes, Mr. McCloskey.

21 MR. McCLOSKEY: Nothing, Your Honour.

22 JUDGE LIU: Thank you.

23 THE WITNESS: Let's be clear, Mr. Karnavas, what I'm doing --


25 Q. I'm entitled to ask the questions --

Page 5040

1 A. I understand, and I want to answer them.

2 JUDGE LIU: Let the witness finish his answer.

3 MR. KARNAVAS: I haven't posed a question.

4 JUDGE LIU: I think the witness wants to say something.

5 MR. KARNAVAS: In that case.

6 THE WITNESS: What I am describing, what I have described, and

7 what I continue describing are the proper allocations of the exercise of

8 command and control. I am not prepared to ascribe to a theory that under

9 a proper reading of the JNA rules and regulations that a brigade commander

10 or a corps commander staff can effectively be hijacked by a superior. I

11 expect if you have a military expert who will subscribe to that, you will

12 bring him up. But that is not a proper, and it is not what is envisioned

13 in the JNA rules and regulations. And if you have a military expert who

14 will say differently, I would like to hear that.


16 Q. Mr. Butler, Mr. Butler, I wasn't going to get there at this point.

17 But you have been hired and you have been getting paid by the Prosecution

18 for the last five to six years, have you not?

19 A. That is incorrect, sir.

20 Q. Well, you were initially seconded to work for the Prosecution,

21 getting paid by the United States government. Correct?

22 A. That is correct, sir.

23 Q. And then at some point you became an employee of the Prosecution.

24 Correct?

25 A. Yes, sir.

Page 5041

1 Q. So your bread and butter was being earned by being a member of the

2 Prosecution team. Correct?

3 A. That was where I was paid from for the last two years, yes, sir.

4 Q. And you've already indicated that you're not independent.

5 Correct?

6 A. No, sir.

7 Q. And would it not be fair to conclude, to use your own logic, that

8 after putting in so much work into this particular case and being a member

9 of the Prosecution team, being a member of the team where you're

10 strategising as to what evidence will be included in your report and not,

11 and what will be said here in Court or not, and what documents will be

12 introduced or not, is it not fair to conclude, sir, that you are not just

13 here as an analyst, but you also have been an investigator, an

14 interrogator, and also an advocate? Isn't that a fair conclusion for some

15 of us to draw?

16 A. Sir, you may choose to draw that conclusion. However, as I will

17 remind you and everyone in the Court for that matter, as a retired

18 professional military officer, I have more in common with the accused than

19 I do with anyone else in this Court. And as such, as a basis of my

20 analysis, as a basis of my looking at the documents, I have tried to do so

21 in a conservative and fair manner because I understand intrinsically the

22 issues with respect to the challenges that military commanders face, they

23 face in combat situations, and the hard decisions they have to make on a

24 daily basis. And that ultimately, they may have to answer for those

25 decisions in an environment like this. And one day perhaps even my own

Page 5042

1 country and my own fellow officers may have to do the same thing.

2 So as a matter of my own personal philosophy, I don't believe in

3 railroading military officers knowing that if that's going to be the path,

4 then it may be that same track that runs over some of my own fellow

5 officers, sir.

6 Q. Okay. Now, getting back to functional relationships, one of the

7 reasons you have a functional relationship, is it not, is that one organ

8 from the higher level can implement an order directly by going through to

9 the lower level of the same organ? Isn't that one of the reasons for the

10 existence of this functional relationship?

11 A. Yes, sir, the functional relationship exists so you have the most

12 effective means of transmitting the orders of the superior through the

13 subordinate for execution.

14 Q. All right. And there may be instances also where you have the

15 commander, and maybe the chief of staff, as we had in this case at one

16 point in time, when they're not in their headquarters, and a decision

17 needs to be executed, carried out. And so one organ can go directly down

18 to its sister organ below. And as long as what they are asking the lower

19 organ to do is within the confines of the order that was given by the

20 higher echelon, that can be done without getting authorisation from the

21 commander. Correct?

22 A. Yes, sir, if it's within those competencies, they would not be

23 normally required to get authorisation from the commander.

24 Q. And in fact, there is nothing in here, is there, sir, that says

25 that Acamovic had to get authorisation? That's the key phrase,

Page 5043

1 authorisation from the commander of the Bratunac Brigade before he could

2 go to the assistant commander of rear services of the Bratunac Brigade and

3 task him to carry out orders which he had been given, that is, Acamovic

4 had been given, from General Zivanovic which he had been given from

5 Mladic?

6 A. Sir, given the hypothetical here, again, it would go back to what

7 the scope of the orders were.

8 Q. Okay. Was the scope of the order given to Trisic, the assistant

9 commander for rear services, by Acamovic, the assistant commander of the

10 Drina Corps within the scope of what Acamovic had been tasked by

11 General Zivanovic?

12 A. Sir, I don't know. I mean we're talking about hypothetical. I

13 don't know what orders Colonel Acamovic gave to Major Trisic.

14 Q. Well, you do know, do you not, what Major Trisic was engaged in.

15 Correct? At least some of them.

16 A. If we go back to Major Trisic's interview, he was engaged in at

17 one step the process of bringing foodstuff from the military bakery at

18 Bratunac to Potocari --

19 Q. Let me stop you there. We'll go step by step.

20 Now, under the circumstances, was that not within the

21 order -- the scope of the order given to Acamovic?

22 A. My understanding from the interview, and it has been about a month

23 since I've read this, he said that the order was given by his commander.

24 I could be wrong, but...

25 Q. Well, is that, Mr. Butler --

Page 5044

1 A. I don't understand your question in this regard because I'm still

2 back to --

3 Q. You're here as the expert. You're here telling us you've analysed

4 all these documents, and I'm trying to ask you, with Major Trisic giving

5 bread and providing water, providing humanitarian aid, what in that is

6 inconsistent with the orders that were given from the higher-up that

7 trickled down all the way to him?

8 MR. McCLOSKEY: I'm going to object and ask that the counsel not

9 interrupt the witness in the middle of his explanation, and I don't think

10 there's a need to raise his voice either.

11 JUDGE LIU: Yes, of course the counsel should not raise his voice

12 in any situation. But the witness said that he did not understand the

13 question, so Mr. Karnavas just gave an explanation. You are too soon.

14 You have to wait until the witness finishes his answer so you can identify

15 the specific problems of this witness.

16 MR. KARNAVAS: Very well, Your Honour.

17 JUDGE LIU: Mr. Butler, now, do you understand the question by the

18 counsel?

19 THE WITNESS: Yes, sir. But I guess what I don't understand, and

20 maybe -- like I said, it has been a while since I read this interview, I

21 don't understand the orders that are being attributed to the assistant

22 commander for logistics, Acamovic in this instance.


24 Q. Let me rephrase.

25 A. That's where -- I don't doubt it. I just don't know it at this

Page 5045

1 point.

2 Q. Do you know what, if any, orders Acamovic was given?

3 A. We have not been able to interview him, so I'm not sure what

4 orders that he was given.

5 Q. Do you know what --

6 A. I'm not recalling that General Krstic mentioned that as a

7 component of his. He may have, but I just don't recall.

8 Q. All right. Was -- were you unable to get a hold of Mr. Acamovic?

9 Is that it? You could not locate him, or was it that it wasn't of any

10 interest?

11 A. No, sir. I believe he was summonsed, but I don't know that the

12 summons was able to be served or whatever. But I know that there was, in

13 fact, interest.

14 Q. You saw -- you are aware of some of his activities during the 12th

15 and the 13th, are you not?

16 A. Yes, sir.

17 Q. Okay. Are there any orders that go to Trisic, either oral or in

18 writing, with respect to some of those activities?

19 A. On the 12th, we have the written order that presumably involved

20 Trisic, the order from the Drina Corps to the Bratunac Brigade, for the

21 assembly of buses from the various brigades. And of course, that went to

22 all the Drina Corps Brigades. And that is a function that I would

23 conclude that Major Trisic would be significantly involved in.

24 Q. Okay. And what was the purpose for that?

25 A. The purpose of the military order from the Drina Corps was to have

Page 5046

1 all of the brigades assemble their buses, or the ones that they had

2 directly with them, and have them sent to the Bratunac stadium by 1630,

3 presumably those were going to be the vehicles that would be used to move

4 the Muslim population from Potocari.

5 Q. How many of those buses did the Bratunac Brigade have that were

6 functioning?

7 A. I don't know the answer to that. We did not get rear-service

8 records from the Bratunac Brigade that details those.

9 Q. All right. And if you look at it in the greater context, as you

10 would put it, of what General Mladic had told every -- had been saying and

11 what was happening at the time, is there anything improper with Trisic

12 complying with that order, if he did so comply?

13 A. No. Within the greater scheme of what was happening, his

14 compliance would be expected.

15 Q. His compliance would be expected, but I'm saying was there

16 anything sinister or nefarious about that? There's a humanitarian crisis,

17 Mladic has indicated that the people will be able to leave. He's already

18 provided or is providing bread and water. And now he's being tasked to

19 assemble buses so that this transfer can occur, so the people can get out

20 of the heat and go to a place or area where certainly their safety is

21 going to be much better. So is there anything sinister or nefarious about

22 carrying out this particular order if, indeed, he did carry it out?

23 A. No. With this respect, I mean, the order is -- there's nothing

24 wrong with it at face value.

25 Q. Okay. When you say "at face value," are you suggesting that at

Page 5047

1 this point Mladic had informed Trisic of what his intent was going to be,

2 if he did have an intent at that time?

3 A. No, sir. That's exactly what I mean, is that while I believe

4 Mladic had an intent, from the face of that order, certainly Major Trisic

5 would be unaware of that intent and would follow that order because at

6 face value it's fully lawful. I mean, it's not a problem.

7 Q. And in fact, do we not have some intercept conversations, and I

8 believe there is even one document - we might get to it, depending on how

9 we're doing on time - but we have one document that was generated by

10 General Zivanovic which indicate that they don't know the

11 whereabouts -- they don't know where the people are going to be taken to.

12 Correct?

13 A. I believe that -- I understand what you're saying. Again, I'm

14 also unclear whether it's an intercept or a document.

15 Q. Well, let me see if I can --

16 A. But I agree that at least in one instance, there was some question

17 as to where the people would be taken.

18 Q. Well, let me -- since we're on the topic on what people knew and

19 what they did, if I could show you what has been marked as P434 for

20 identification purposes.

21 A. I've got it.

22 Q. Okay. Sorry for that.

23 We see, do we not, sir, I believe you even commented about this

24 because there is this little exchange between you and the Prosecution as

25 to how to analyse intercepts and other information, the synthesis process.

Page 5048

1 Here, we see it says -- first of all, this is from

2 General Zivanovic, is it not?

3 A. Yes, sir, that is correct.

4 Q. It's dated 12 July 1995. Correct?

5 A. Yes, sir, that is correct.

6 Q. It looks like it was generated on or about 10.00. It says

7 "processed at 1020 hours." Correct?

8 A. Yes, sir. It was delivered at 1020, so this is the actual

9 outbound signed one, so it would be in this particular instance, it would

10 have been drafted at the Drina Corps headquarters to be sent out at 1020.

11 Q. Was this drafted at the Drina Corps headquarters, or was it

12 drafted at the Bratunac Brigade headquarters which was the forward command

13 post at the time of the Drina Corps?

14 A. Given the fact that it has a Drina Corps stamp, and this larger

15 stamp is consistent with the documents that have come out of the

16 headquarters of the Drina Corps as opposed to the documents we see in the

17 Bratunac Brigade where it is just a handwritten notation, I believe this

18 document was, in fact, drafted and signed at the Drina Corps headquarters.

19 Q. Okay. And at this point, General Zivanovic is stating, and I'm

20 reading from the first -- it will be the second sentence of the first

21 paragraph. "Their final destination is unknown to us for the moment."

22 Correct?

23 A. Yes, sir, that is correct.

24 Q. Now, taken at face value, it would appear, would it not, that the

25 commander of the Drina Corps at this point in time did not know the

Page 5049

1 destination. Correct?

2 A. Yes, sir, I agree.

3 Q. All right. And I understand that General Zivanovic has not been

4 indicted, although he has been questioned.

5 A. He has been interviewed on a number of occasions. And to my

6 knowledge, he has not been indicted.

7 JUDGE LIU: Yes, Mr. McCloskey.

8 MR. McCLOSKEY: Judge, whether anyone has been indicted or not is

9 really not relevant and it's not an appropriate question.

10 MR. KARNAVAS: It would be an appropriate question at this point

11 in time, Your Honour, because at this point in time, 12 July,

12 General Zivanovic is still the commander. And so if crimes were committed

13 at that point in time, and he's the Drina Corps commander, it would stand

14 to reason that he would be indicted for those crimes.

15 JUDGE LIU: Well, Mr. Karnavas, I think, you know, you have to

16 remember the rule in the rules of procedure that this Tribunal has the

17 power to issue a sealed indictment.

18 MR. KARNAVAS: I understand that, Your Honour. I totally

19 understand that.

20 JUDGE LIU: So if this issue is not directly related to your case,

21 I hope you could move on.

22 MR. KARNAVAS: Okay.

23 JUDGE LIU: Yes, Mr. McCloskey.

24 MR. McCLOSKEY: I would just add, Your Honour, that it's clearly a

25 well-known established fact that Mr. Karnavas would agree that an

Page 5050

1 indictment itself is not evidence, and that, as he knows, the Prosecution

2 does not indict all those that may have been guilty in the Tribunal. And

3 so to try to draw an inference whether or not someone is guilty because

4 whether or not they have been indicted is not a proper inference.

5 JUDGE LIU: Well --

6 MR. KARNAVAS: I'll move on, Your Honour.

7 JUDGE LIU: It's time for the break.

8 MR. KARNAVAS: Okay. I apologise.

9 JUDGE LIU: We'll resume at quarter to 11.00.

10 --- Recess taken at 10.15 a.m.

11 --- On resuming at 10.47 a.m.

12 JUDGE LIU: Yes, Mr. Karnavas.

13 MR. KARNAVAS: Thank you, Mr. President, Your Honours.

14 Q. Mr. Butler, we were speaking about General Zivanovic, and at least

15 if we are to take this document that we spoke of, Prosecution Evidence

16 434, it would appear that he, the commander of the Drina Corps at that

17 point in time, did not know the destination of the folks that were about

18 to be transported out of Potocari. Correct?

19 A. Yes, sir, I agree.

20 Q. But from this order, we also see that he's aware that there will

21 be a need to make the necessary arrangements, logistic arrangements, for

22 that transportation to occur. Correct?

23 A. Yes, sir. I mean he's specifying that the Main Staff needs to

24 provide additional fuel resources.

25 Q. And it would appear, would it not, that he, as the commander, of

Page 5051

1 the Drina Corps, particularly since Potocari at this point in time would

2 fall within the zone of responsibility as it's designated in the rules,

3 that it would be up to him to ensure that General Mladic's order that the

4 people be transported out be carried out?

5 A. Yes, sir, he would retain overall responsibility for that.

6 Q. And I take it if General Zivanovic did not know the final

7 destination, we can conclude that in all likelihood the commander -- the

8 assistant commander of the rear services, Acamovic, also did not know the

9 destination. Correct?

10 A. I would disagree with that because as we note, at the time

11 General Zivanovic is writing this, he is in Vlasenica. Colonel Acamovic

12 as well as a number of other Drina Corps officers are at that same morning

13 in Bratunac. And because of the proximity between them and

14 General Mladic, they may well be aware of what the final destination is.

15 Q. Don't you think they would have communicated that to their

16 commander?

17 A. That would be something that I expect that they would do, and I

18 don't know that it didn't occur at a point in time.

19 Q. But I'm talking about at this point in time, not some other point

20 in time. At this point in time, you seem to be implying, albeit with some

21 qualifications, that Acamovic, the deputy commander of rear services,

22 would have known of the final destination while his commander, who is

23 making this very urgent request, is totally unaware?

24 A. No, sir. When I'm going back to your question, was that just

25 because General Zivanovic does not know at the time, because there is a

Page 5052

1 physical separation between them, I can't make the same conclusion that

2 Colonel Acamovic does not know at the time.

3 Q. All right. So here we have an instance -- we have an example

4 where a commander is not necessarily aware of a circumstance. Correct?

5 Even though they can easily reach each other through communication means.

6 Correct?

7 A. Yes, sir.

8 Q. And even though we have this superior -- the superior/inferior or

9 superior/officer relationship. Correct?

10 A. That is correct, sir.

11 Q. All right. So -- and we have a very important situation on the

12 ground. Correct?

13 A. Yes, sir, as you said, a developing humanitarian crisis. Yes,

14 sir.

15 Q. Right. And I just wanted to point out that here is an example

16 where the commander is making a request, and you're telling us that in

17 spite of his position, in spite of the situation on the ground, and though

18 one would expect him to know the final destination, he in all likelihood

19 if we are to accept this at face value does not know, while at the same

20 time his assistant commander would have more information. Correct?

21 A. No, sir. What I'm saying is that as this document is drafted,

22 General Zivanovic does not indicate and does not know presumably what the

23 final destination is. I don't know when this document was drafted. We do

24 know when it was sent out. But again, I don't know and I can't make a

25 conclusion as to whether Colonel Acamovic knew more or less at that time.

Page 5053

1 Q. Okay. Would you take General Zivanovic's word at face value,

2 based on this document, that is, that he did not know?

3 A. Yes, sir, at the time this was drafted I believe that's correct.

4 Q. Okay. Now, we have another document, and that is -- I believe

5 it's P191. This is an intercept. You have it? If not, I have it handy

6 for you.

7 A. I have it, sir.

8 Q. Okay. And you can put it on the ELMO.

9 And on this document, there seems to be an exchange. You're aware

10 of this document, are you not?

11 A. Yes, sir, I am.

12 Q. And in fact, you testified regarding this particular document.

13 Correct?

14 A. Yes, sir, I believe so.

15 Q. All right. Now this conversation takes place at approximately

16 1240 hours. And I believe it's -- we're still on July 12th. Correct?

17 A. That is correct, sir.

18 Q. All right. So this would have been at least two hours-plus after

19 the very urgent request sent by General Zivanovic. Correct?

20 A. Yes, sir, that is correct.

21 Q. Now, it seems that X is from Panorama. Correct?

22 A. Yes, sir.

23 Q. That's the Main Staff?

24 A. Yes, sir.

25 Q. All right. And do we know where Y is? Do we know --

Page 5054

1 A. I'm assuming that from the internal part of the conversation from

2 Y that it is Bratunac. It doesn't compromise its own, but the fact that

3 it's noting some of the events, and "this morning, we organised it from

4 here," I'm concluding that Y is in Bratunac.

5 Q. All right. Fair enough. And what can we glean from this? In

6 fact, why don't you read it so we can then deconstruct it.

7 A. From the beginning, sir?

8 Q. From the beginning. It's a short one.

9 A. Y states: "We are starting the evacuation of those who want to go

10 to Kladanj."

11 X says: "Okay."

12 Y says: "Pass it on. Just let/objects missing/provide

13 transportation.

14 There's just three dots for X.

15 And Y says: "And reinforce... With trucks and buses, and a water

16 tank should be sent to give them water and food. This morning, we

17 organised it here. We'll give them everything. I talked with them, and

18 we'll accept all of the civilians who want to and they can stay. Those

19 who don't want to can choose where they'll go."

20 X is: "..."

21 Then Y: "... See you, bye."

22 Q. From this conversation, it would appear, would it not, that Y is

23 under the impression that those who want to stay can stay, and those who

24 want to leave can leave. Correct?

25 A. Yes, sir, that is correct.

Page 5055

1 Q. And in fact, it shows here that at least Y, assuming Y is at the

2 Bratunac Brigade, is under the impression that the trucks that are heading

3 over there and the food that's going there is for the purposes of to

4 assist the folks that have gathered in Potocari. Correct?

5 A. Yes, sir, that is correct.

6 Q. All right. And so the impression that Y would get, would he not,

7 or she, depending on their sex or the gender, I should say, would have no

8 reason to believe that anything sinister or nefarious is being planned.

9 Correct?

10 A. That is the impression that -- that is Y's -- that is the

11 underlying impression of the conversation from correspondent Y.

12 Q. All right. And we have no reason to know what he or she actually

13 knows, but all we have is this particular intercept, and that's all we

14 have, correct, between these two at this given time?

15 A. Yes, sir, I mean I believe that you can derive from the context

16 exactly what Y is aware of, and that that's fair.

17 Q. Okay. Now, if I can show you 192, P192. Again, I have it if you

18 don't.

19 A. I have it, sir.

20 Q. Okay. This conversation takes place 5 -- 10 minutes after the

21 earlier intercept. And again, assuming that these intercepts are true,

22 accurate, and complete. And here, there seems to be, to coin your term, a

23 voice compromise. Correct?

24 A. Well, certainly in this respect, the compromise is with respect to

25 rank, at least in the text, it says "General." I don't believe that it

Page 5056

1 says in the text "General Mladic." So in this particular case, the

2 identification of Mladic is based off of the operator.

3 Q. Okay. Well, is there anything in this text that would give the

4 impression that this is indeed General Mladic?

5 A. Well, I believe from the tone and the directives that this is, in

6 fact, General Mladic.

7 Q. All right. And this is based on your observation of him on

8 videos, the manner in which he's behaved; and from that, and the

9 circumstances at the time, and that's how you've arrived at this

10 conclusion? And some information from the operators that on occasion they

11 would be able to identify particular key individuals because of their

12 distinctive speech pattern?

13 A. Well, I rely on that far more than some of my own perceived

14 psychological skills in evaluating General Mladic.

15 Q. Okay.

16 A. I'm very comfortable with the identification from the operators in

17 this respect.

18 Q. And -- okay. Do we know who X is?

19 A. I do not believe that in this X is identified.

20 Q. All right. So in other words, you do not know?

21 A. No, sir.

22 Q. Okay. Do you know where X might be?

23 A. No, sir.

24 Q. All right. And from here, General Mladic seems to be indicating

25 something slightly different from the fellow or from the conversation that

Page 5057

1 we went through earlier in P191. Correct?

2 A. Yes, sir.

3 Q. So assuming this is General Mladic, he seems to have made up his

4 mind, if we are to believe this intercept at face value, that those

5 individuals that are gathered at Potocari will have no choice and, in

6 fact, all of them will have to be transported out. Correct?

7 A. Yes, sir, that is correct.

8 Q. All right. And you don't have anything that would tell us that

9 this state of mind, assuming it was General Mladic, and assuming that that

10 was indeed his state of mind at the time, you don't have anything that

11 would allow us to know that this state of mind was passed on to Mr. Trisic

12 who was acting at the time as the assistant commander of rear services who

13 was also assisting in carrying out orders that he had received from the

14 higher organ, the assistant of the rear services of the Drina Corps?

15 A. No, sir. I have no information that would be able to expand on

16 the state of mind issue of Major Trisic in that respect.

17 Q. Okay. Now, just getting back to Major Trisic for just slightly,

18 and we're just using this as an example, but I want to go back to the

19 functional relationships because we had that little quarrel; hopefully

20 we're past it. But what I was focussing on is when a higher echelon organ

21 is going to a lower echelon organ acting on an order which has been

22 ordered from the top, you would not expect under these rules that the

23 lower echelon organ would need to get authorisation - that's the operative

24 word - authorisation from his immediate commander?

25 A. Again, Mr. Karnavas, with respect to how broad or how narrow that

Page 5058

1 order was, it will depend.

2 Q. Okay. Now --

3 A. Yeah.

4 Q. I'm glad that you said that because we may not disagree here. If

5 the request is narrow, in other words, it's within the original request,

6 and if it's sufficiently narrow that it can be carried out without

7 compromise, if I can use that term, without compromise to the organ

8 itself, the lower echelon organ, that then one would not expect the

9 assistant commander of rear services to have to go to his commander and

10 say: "What do you think about this? Have you authorised it" and what

11 have you. Correct?

12 A. Yes, sir, that is one possibility. Just the same with, you know,

13 another possibility would very well be going back to P434 where because of

14 this broad envelope of the order that has come from the Drina Corps to the

15 Bratunac Brigade, the assumption that the commander will be aware of the

16 general intent behind it, that the rear services' officer could then carry

17 out specific components of that and would not have to check back. I mean,

18 that is --

19 Q. Right.

20 A. -- That's all in that same general envelope.

21 Q. Okay. If on the other hand, and I think this is where perhaps we

22 got off a little bit astray, and it might have been because we were a

23 little bit excited, or at least on my part, if, however, the order to the

24 lower echelon organ is such that in essence it would compromise the

25 resources, compromise that particular organ, in other words, the request

Page 5059

1 is of such nature, even though it's within the general confines of the

2 order from the higher-up, but what is being requested would really affect

3 the functioning and capabilities of the lower organ, then in all

4 likelihood we can conclude or we would expect, I should say, that the

5 assistant commander would go to his own commander and say "I just received

6 this order. It really will drain us of our resources. It will gut us

7 out." I think that was the word that you used. "What should I do?" At

8 which point then in time the commander himself would step in to speak to

9 his commander to see if the situation could be resolved.

10 A. In part, and in the other part it is also if that request is going

11 to breach outside of the competency, so it's not just a question of

12 overtaxing the specific organ, but it's also an issue of if it were going

13 to -- in order to accomplish that task, that there would be coordination

14 or there will have to be assistance from other staff organs. So he would

15 have to broaden that. But I mean, back to your specific instance, yeah,

16 that would be one instance where he would go back to the commander.

17 Q. And in this -- in the context in which we are speaking of in those

18 days, what was being requested of Mr. Trisic was not outside the

19 competency of that particular organ, was it?

20 A. Strictly speaking, no, sir.

21 Q. Okay. And strictly speaking, what was being asked of him, keeping

22 in mind all the other things that are about to happen as far as where the

23 fuel will come from, where the buses will come from, what was being asked

24 of him, the assistance that the rear services of the Drina Corps was

25 requesting directly of the rear services of the Bratunac Brigade, was not

Page 5060

1 going to overtax the Bratunac Brigade rear services, was it?

2 A. I would disagree with that statement.

3 Q. Okay. And how so? Let's deal with that disagreement so we can

4 clear up the air before we go on to the next topic.

5 A. Assuming in this instance that the Bratunac Brigade was tasked and

6 that the rear services branch was administering the buses and fuel issue,

7 certainly as noted in P434 --

8 Q. P434, which one is that?

9 A. This is the 12 July one on fuel, sir.

10 Q. Okay. Because you're throwing these things at me, and --

11 A. I'm going to go slow for everybody.

12 Q. As long as I know what exactly you're talking about. Okay.

13 A. The issue of fuel especially 10.000 litres of diesel and 2.000

14 litres of petrol, were going to far outstrip the holdings of the Bratunac

15 Infantry Brigade.

16 Q. Let me stop you right there for a second. With respect to the

17 fuel, because I put it in the greater context the way normally you like

18 to, we knew with respect to fuel that on the 11th, there was some

19 discussion -- or the 12th some discussion with the UN with regard to the

20 fuel. Correct?

21 A. That is correct, sir.

22 Q. And we know that the arrangement, which the parties had agreed to,

23 was that the VRS would provide the fuel, and at some point, they will be

24 reimbursed of that fuel by the UN. Correct?

25 A. Yes, sir, that is correct.

Page 5061

1 Q. And we know -- we know that fuel came from outside the Bratunac

2 area, do we not, in order to pump fuel into those 50-some buses and trucks

3 that came?

4 A. No, sir. My understanding is that it came from the Vihor fuel

5 facility which is in Bratunac.

6 Q. Let's assume it came strictly from them. Is that an asset or a

7 resource of the Bratunac Brigade? Yes or no. And we'll discuss it, but

8 just --

9 A. Not strictly.

10 Q. What do you mean "not strictly"? Is that a military asset?

11 A. No, sir.

12 Q. Okay. So in other words, the commander of the Bratunac Brigade

13 just can't rely on that as his private reserve, can he?

14 A. Whether he can rely on it as his private reserve, it is reflected

15 in their own evaluation that they recognised that 75 per cent of their

16 fuel needs, particularly from the period 1 January to 1 July of 1995, came

17 from Vihor, and that only 25 per cent come from the VRS.

18 Q. But we're not talking about that. What I'm talking about --

19 MR. McCLOSKEY: Objection. He interrupted the witness while the

20 witness was still trying to explain.

21 MR. KARNAVAS: I thought he was finished. I thought he was

22 finished.

23 MR. McCLOSKEY: And also, the interpreters, we wouldn't have a

24 problem if we could have a slight delay.

25 JUDGE LIU: That's the problem with these proceedings,

Page 5062

1 Mr. Karnavas.

2 MR. KARNAVAS: Guilty as charged, Your Honour. I will --

3 JUDGE LIU: Take your time. Take your time. It's different from

4 any domestic jurisdictions. I know that we'll lose the gist of

5 cross-examination, I know that. But you have to take your time.

6 MR. KARNAVAS: You're right. You're absolutely correct,

7 Your Honour, absolutely correct.

8 Q. If you want to complete your thought. If not, I can go on to the

9 next one.

10 A. Sir, I'm not trying to fight, but what I'm trying to explain is

11 that, you know, getting back to what was the original question as to

12 whether or not these issues fall strictly in the scope of the competence

13 of rear service to a point where he wouldn't feel a need to brief his

14 commander, and then you asked me to explain the implied task behind a lot

15 of this. And that's what I'm trying to do, sir.

16 Q. Well, let's put it into the context. You have Mladic on the

17 ground. Correct?

18 A. Yes, sir.

19 Q. You have General Zivanovic or Krstic, General Krstic, who would

20 have been the next in line on the ground. Correct?

21 A. Of July, yes, sir.

22 Q. And now you have Acamovic coming directly to Trisic making a

23 request that he has received from his higher-ups.

24 A. Yes, sir.

25 Q. We also know that there has been an announcement for trucks and

Page 5063

1 buses to come to Bratunac. Correct?

2 A. There are orders to that effect. Not announcements, but certainly

3 with respect to the military, they're orders.

4 Q. All right. You're correct in one part and incorrect in another.

5 There were orders to the military, but were there not also announcements

6 for the civilian resources of buses and trucks to come?

7 A. There were the orders for the military. There were the orders

8 from the RSMOD.

9 Q. The RSMOD --

10 A. The Ministry of Defence, I'm sorry.

11 Q. All right.

12 A. For the requisitions of civilian assets. I understand, although

13 I've not ever seen the text of such, that there may have been public

14 announcements over the airwaves for people to send stuff.

15 Q. You are aware, and we talked about this Territorial Defence

16 concept and All People's Defence concept. Right?

17 A. We did have a discussion on that, yes, sir.

18 Q. And you're aware that in fact the folks that lived in

19 Bosnia-Herzegovina, in fact, the folks that lived in the former Yugoslavia

20 would often go through drills in order to comply with requests for

21 assistance when there would be natural catastrophes or natural disasters

22 or the need of such assistance. Were you aware of that?

23 A. I take your word for it. Again, I'm not very versed in the

24 pre-war TO relationship and how that works. So I mean, I'll take your

25 word for it on that.

Page 5064

1 Q. Perhaps that's why -- perhaps that's why, and we'll get to that

2 throughout the process of the trial, the mobilisation process of getting

3 the Department of Defence to make the request for trucks and buses to come

4 to assist was able to be achieved with some efficiency. Were you aware of

5 that?

6 A. I don't connect the two. The Republika Srpska Ministry of

7 Defence, by their own law, the law on defence, is charged with the ability

8 to do that. I don't see how it's connected to a former TO structure.

9 Q. Okay. Well, the law is an extension or a -- in any event, I don't

10 want to get into that discussion. But if we stick with the law itself,

11 the law -- and the Ministry of Defence is a civilian branch, is it not?

12 A. The Minister of Defence rotated -- not rotated, but at various

13 points he was military and civilian. But I believe they tried to organise

14 the Ministry of Defence as a civilian branch as much as possible.

15 Q. And the request was to the civilian authorities to assist in

16 providing buses and trucks. Correct?

17 A. I don't know it's couched a request. It says an order. If it

18 says a request, I'm incorrect. But it's an order.

19 Q. An order, then. It's even stronger. They ordered them. The

20 government had the power to order civilian authorities to provide buses

21 and trucks forthwith. Correct?

22 A. Yes, sir. They came out of the state-owned businesses.

23 Q. All right. Which may explain -- which may explain as to why those

24 buses and trucks arrived there in such a short period of time. Correct?

25 A. Yes, sir, that is correct.

Page 5065

1 Q. Which may also explain as to how fuel was able to get there, or if

2 it was there, to be used that belonged to the civilian authorities and be

3 used by the military in order to carry out this particular task which we

4 all agree was a looming, humanitarian crisis at the time. Correct?

5 A. Sir, that may be a possibility. I do not have any data as to the

6 mechanics of exactly how or under what circumstances the fuel was made

7 available. But clearly, we do have the records that it was.

8 Q. All right. And finally, you don't have any records to suggest, do

9 you, that the fuel that was needed for that period of time, the buses and

10 the trucks, was within the capabilities of the Bratunac Brigade? In other

11 words, they had sufficient storage of fuel to meet those demands?

12 A. I don't believe that they did have the -- brigade's own fuel. It

13 was nowhere near sufficient.

14 Q. All right.

15 A. I believe that's a fair statement.

16 Q. And it would also be fair that when the issue of fuel comes up

17 and, for instance, Major Trisic is involved in his discussions with I

18 believe it's Lieutenant Colonel Acamovic, that those two, given that

19 they're from the same organ, higher echelon to lower echelon, would

20 probably put their two heads together and perhaps meet with the local

21 authorities in order to ensure that the fuel is there for the trucks and

22 buses. Correct?

23 A. Yes, sir. I expect that they would have coordinated to ensure

24 that the buses and trucks that were coming in were going to be fueled, or

25 the ones that needed to be fueled. And in fact, you know, the records

Page 5066

1 that we have indicates that there was a successful process to do that.

2 Q. Right. And I guess the point that I'm trying to drive straight

3 through the other end is that there was no need for Major Trisic to get

4 authorisation from his commander to assist his -- to assist

5 Lieutenant Colonel Acamovic of the higher echelon organ to which he

6 belonged to in this particular case, was there? There was no need.

7 A. Given that on that particular day they were talking about a

8 dispersal of, I think, approximately 6.000 litres of fuel and that that's

9 well over the normal consumption of the brigade, I don't know that I could

10 make that logical conclusion. I think that it would be enough of an event

11 that there would have to be some wider discussion of it.

12 Q. All right. And when we throw into the mix that you have I believe

13 General Krstic was on the ground, would we not -- can we not conclude that

14 Trisic would have expected, assumed, presumed, or at least expected that

15 if an order came directly to him from Lieutenant Colonel Acamovic, that

16 that order had been precleared and that he was to act upon it as

17 expeditiously as humanly possible?

18 A. Yes. Major Trisic is allowed to assume that.

19 Q. And so as we stand here today, as we stand here today, and when I

20 repeat myself, it's not for the sake of hearing myself twice, it's for the

21 sake of driving the point home, but when we sit here today, we cannot say

22 with any degree of certainty that Major Trisic had to get authorisation or

23 received authorisation or even went to get clearance or even went to

24 inform Colonel Blagojevic before he carried out a lawful order as he was

25 required to do on that particular day that was issued to him by the higher

Page 5067

1 echelon organ?

2 MR. McCLOSKEY: Objection. That assumes fact not in evidence,

3 that this is a lawful order. I don't know why that needs to be thrown

4 into the question. I don't mind the question.

5 JUDGE LIU: Well, witness, answer the question, bearing in mind

6 there's no "lawful" word before that order.

7 THE WITNESS: Yes, sir, it is a fair assumption. We have no data

8 on that one way or another. It is a fair assumption.


10 Q. All right. And, sir, I guess just to put the finishing touches on

11 this, the character of the relationship between the organs of a higher

12 echelon and those of the lower echelon are one of a staff relationship.

13 Isn't that a fact? And I'm --

14 A. Yes, sir. I mean, that sounds like that's language right out of

15 the regulation.

16 Q. It is, it is. I'm pounding it home. And this relationship, the

17 staff relationship, is actually more of a functional relationship governed

18 by the principles of obligatory action - that's the language that I'm

19 reading from - obligatory actions in accordance with the request of the

20 staff organ of the superior command for the purpose of implementing the

21 decision made by the superior commander. Isn't that what we're talking

22 about and have been talking about for the last hour or so?

23 A. Yes, sir. I mean, you're talking about the proper application of

24 the command and staff process. I agree.

25 Q. And on its face, on its face at least, one might gather that there

Page 5068

1 is an alternative chain of command that is permitted within these

2 particular rules that govern the JNA and the VRS who observed those rules

3 and implemented more or less many of those rules. And this is one of

4 them. Correct?

5 A. Mr. Karnavas, if you do not have a military background, I can see

6 where you can come to that conclusion.

7 Q. Okay. All right. Well, we'll argue that point some other time.

8 But let me ask you this: As a comparative purpose, for comparative

9 purposes, because we know that there was some emphasis placed with

10 respect -- with respect to the intercept that we have between

11 General Krstic and Beara from the Main Staff where he is requesting

12 assistance because he has yet to deliver approximately 3500 parcels, that

13 one. Do you recall? I don't have the number handy.

14 A. I am familiar with the discussion, sir.

15 Q. Okay. And if you do have the number, maybe, you know, just for

16 the record so we have a record of that. But in any event, we'll get to

17 it.

18 As I recall your testimony, you used that as an example of showing

19 how the system worked. In other words, you implied or concluded that

20 since Beara needed some assistance, he did not merely reach out -- he did

21 not merely reach out to the Zvornik Brigade or the Bratunac Brigade or the

22 Milici Brigade and just take their assets; but instead, he called -- he

23 called General Krstic. Correct?

24 A. Yes, sir.

25 Q. Okay. And you said here is how the system works because

Page 5069

1 General Krstic then said: "I can't pull some folks out of this area

2 because it will disturb the access, but why don't you check with Nastic or

3 Blagojevic." Correct?

4 A. Where I made the point that it is how the system works is in

5 illustrating that even in this instance, as Colonel Beara, who was

6 involved - and I think that's not a point of contention - in unlawful

7 acts, was not able to operate outside of his own competence and had to get

8 the authority from the higher commander.

9 Q. Exactly. And one of the reasons is because there was no

10 functional relationship there.

11 A. I'm not catching your point, sir.

12 Q. Okay. Maybe you could help me out. Colonel Beara is with the

13 security services. Correct?

14 A. Yes, sir.

15 Q. Now, he has -- he has a functional relationship with the security

16 services of the lower echelon, and that would have been the Drina Corps.

17 So he would have gone to Popovic if he needed them to act upon an order

18 which he had received, that is, Mladic -- or Beara had received from

19 Mladic. Correct?

20 A. Yes, sir. In that respect, he would have -- his functional

21 subordinate would have been Popovic.

22 Q. And below Popovic, he could reach even further down and grab

23 Nikolic if he so needed to go that further down the chain because of this

24 functional relationship which we talked about today. Correct?

25 A. Yes, sir. I mean, in theory it would be Popovic going to Nikolic,

Page 5070

1 but there could be a skip. I agree.

2 Q. All right. And because of his position and because of where he

3 was coming from, he could easily even reach further down below Nikolic

4 right to the military police which are, in essence, part of or controlled

5 by or directed by the security organ within a brigade. Correct?

6 A. I would disagree there because while they are, in fact, controlled

7 by and directed by the security organ, they again fall as an asset of the

8 commander. So again, while it's situation-dependant, that is not a

9 blanket statement I'm prepared to agree to.

10 Q. Okay. And I might have gotten carried away there. I might have

11 been overbroad. But you would agree with me, would you not, that

12 generally speaking Nikolic would be tasking the military police?

13 A. He is responsible for their day-to-day functions and that would

14 include tasking, yes, sir.

15 Q. And Popovic is looked upon or could be looked upon by others as

16 the superior commander, at least within the organ, within that functional

17 relationship, Popovic would be looked upon as the superior of Nikolic.

18 Correct?

19 A. Within that staff chain, he would be considered the superior of

20 Nikolic, yes, sir.

21 Q. And within that staff chain, Mladic would be looked upon as both

22 the superior of Popovic and Nikolic. Correct?

23 A. In that context, I mean, Mladic is the commander both through the

24 command chain and indirectly through his staff chain. However, again,

25 Beara, and then on top of Beara, Tolimir, so there are a couple more

Page 5071

1 levels.

2 Q. Okay, all right, we're not going all the way up the food chain.

3 I'm going to stop at Beara. So when Beara goes to a military police

4 officer or when Popovic goes to the head of the military police and makes

5 a demand, is it not reasonable, is it not reasonable to conclude that they

6 must act upon that demand? Or to put it more precisely, that order?

7 A. Yes, sir, that would probably be their first instinct. They would

8 receive the order from a colonel and would follow it.

9 Q. All right. Now, getting back to our example, in this particular

10 intercept, Beara, Beara - and I believe for the record it's P245 - Beara

11 is not asking Krstic, General Krstic, to use the security organ or to use

12 the military police. He's asking for any help that he can get which we

13 could imply are soldiers themselves. Correct?

14 A. That's a fair implication.

15 Q. Okay. And those soldiers that he's requesting are outside,

16 outside the structural, the functional relationship. Correct?

17 A. Presumably the subordinate units are outside of his functional

18 relationship, yes, sir.

19 Q. And that's why he cannot just reach out and grab some of them

20 without going through the proper chain of command. Correct?

21 A. Yes, sir, I agree.

22 Q. And in fact, if he had done so or if one would do that in that

23 situation, because of the lack of functional relationship, the lower

24 echelon individual, be he a soldier or an officer, might not necessarily

25 respond in the same fashion, almost instinctively, reflexively as, say,

Page 5072

1 for instance when Popovic would go to the military police and ask them to

2 do something?

3 A. I suspect that for a young officer or a soldier who's given an

4 order by a colonel, that there would be an urge to respond to it

5 obviously. However, in the particular case, because -- assuming that they

6 knew who Colonel Beara was and, of course, assuming that they knew he was

7 outside the functional area, what would have happened or should have

8 happened would be that that commander or soldier basically goes back to

9 his immediate superior and says: "I have received this order from this

10 colonel. Do I carry it out, sir?"

11 Q. Right.

12 A. So that is the more practical application of, I believe, the point

13 you're getting to.

14 Q. Right. One is reflex because there is a functional relationship.

15 The other is pause, pause. Perhaps -- perhaps some consultation with

16 their immediate superior, though perhaps because of Colonel Beara's

17 personality and charisma, if he had any, if he had any, they may have

18 reacted. Okay --

19 A. Again, sir, the assumption is that the people, depending on how

20 far down the chain of command he's going to ask, you can't make the

21 assumption that they will know him on sight.

22 Q. Right.

23 A. So they're going to respond as in they're getting an order from a

24 colonel. It is not the guidance that they last received from their own

25 superior. And they're going to, as a matter of practice, want to contact

Page 5073

1 their own superior officer to find out if what they're receiving it an

2 order that they ought to follow.

3 THE INTERPRETER: Can the speaker kindly slow down, please.

4 THE WITNESS: My apologies.

5 MR. KARNAVAS: For once you're guilty and not me.

6 Q. Now, we said that scenario you gave us is because they're outside

7 the functional relationship, and one would not expect that pause, that

8 refrain, say, from the military police who would instinctively act upon an

9 order from Popovic or even Nikolic, and certainly from Beara because

10 that's who normally tasks them. Correct?

11 A. I would say certainly from Nikolic and Popovic. And again, Beara,

12 it may well be: Do they know who he is? He is not a visible figure in

13 Bratunac. But with respect to Nikolic and Popovic, I conclude that these

14 are people that the military police officers should know on sight.

15 Q. Okay. Now I think we can move on.

16 Just to bring us back a little bit to Potocari, we have these

17 refugees, some of whom will become prisoners, if I could use that term, in

18 Potocari. On that day --

19 A. 12 July, sir?

20 Q. 12 July. 12 July. Whose are they? Are they the Main Staff? Are

21 they the Drina Corps's? Or are the Bratunac Brigade's? They're not an

22 asset. They certainly are a liability. They need to deal with them. Who

23 is in control, in charge? Who is responsible for all of these folks that

24 have gathered in Potocari as a result of Krivaja 1995?

25 JUDGE LIU: Yes.

Page 5074

1 MR. McCLOSKEY: If that question could be broken down. There are

2 several conflicting things, who do they belong to, whose responsibility?

3 These are all different things, and it's an important area.

4 MR. KARNAVAS: I agree. I'm just trying to speed the process up,

5 Your Honour. But I'll break it down.

6 JUDGE LIU: I think the question asked by the counsel is a proper

7 one. And the -- we all get the point in this question. We will see how

8 the witness is going to answer this question. If there's need to reput

9 the question, you may do that, Mr. Karnavas.

10 MR. KARNAVAS: Thank you, Your Honour.

11 THE WITNESS: In theory, they belong to the VRS. As a course of

12 my analysis in the investigation, and I don't like to use the phrase

13 "ownership" obviously, whom they are in custody of at any given time

14 remains an open question. Logically, the Bratunac Brigade, as the unit on

15 the ground and the unit with the bulk of the resources would play a large

16 part in that. The Drina Corps, at that time chief of staff, and their

17 other staff officers will also play a part in that, as will the Main Staff

18 officers who play a part of it. So I don't think that you can say that

19 they are in the custody of this echelon at this point in time and under

20 these particular circumstances.

21 It's just not there. I mean, certainly we've not had witnesses

22 come forward from the various military organisations and claim where the

23 prisoners or whose specific custody they are in. So given the information

24 that I have, there is no specific answer to your question.


Page 5075

1 Q. Okay. I guess we're going to have to reclaim some ground that I

2 thought we had gained yesterday, and now we seem to have lost. And I'm

3 talking about zone of responsibility. See, I'm trying to move forward.

4 Okay. Now, I believe, and correct me if I'm wrong, that we talked

5 about as far as two days ago that it was your answer that if you have the

6 zone of responsibility on the map with respect to the Bratunac Brigade, a

7 concept which I vehemently disagree with, but nonetheless, if we accept

8 that, if we accept that, you had indicated that other units could be

9 working inside that zone. In fact, we see -- we saw an example of another

10 brigade actually having or presumably having its zone of responsibility

11 inside that area. And you had indicated that when they are working,

12 operating inside the zone of responsibility of another brigade, of the

13 Bratunac Brigade in this instance, that the Bratunac Brigade would not

14 have any control or command over those units. Now, that's the long and

15 short of it. Correct?

16 A. Yes, sir. If they weren't given subordination of those units,

17 they don't have command of them. I agree.

18 Q. Okay. So now, that is going to be our point of departure as we

19 try to regain the ground that we seem to have lost.

20 MR. McCLOSKEY: Your Honour.

21 JUDGE LIU: Yes.

22 MR. McCLOSKEY: I just go back to my previous objection.

23 Mr. Karnavas's question had three parts to it that I can recall. One had

24 to do with ownership, and that's, as Mr. Butler said, that's difficult to

25 figure out what that means in a military context. It had to do with

Page 5076

1 control, which we've heard a lot about, and it had to do with

2 responsibility. Mr. Butler, it's hard to tell which three of those he was

3 responding to, but I think it was mostly the one having to do with

4 ownership.

5 Now, there has been assumption by Mr. Karnavas that he was talking

6 about responsibility, and now he's being cross-examined on the issue of

7 responsibility. There's -- that's the problem. We can't tell what

8 Mr. Butler said about responsibility because there was three parts in that

9 question, and I don't know if -- he might even agree with Mr. Karnavas.

10 So that was my problem.

11 JUDGE LIU: Yes, yes.

12 MR. KARNAVAS: I'd like to respond.

13 JUDGE LIU: I understand that.

14 MR. KARNAVAS: I would like to respond, Your Honour. Because

15 Mr. Butler here finally, you know, we're connecting. He's understanding

16 my questions. And certainly Mr. Butler is not shy of voicing his opinion

17 if he doesn't understand me or if he thinks my question is too complex or

18 I'm asking too much of him. And so I'm trying to be kinder and gentler.

19 This is why I've taken this tack. I'll break it down. I'll break it

20 down.

21 JUDGE LIU: I think Mr. Butler answered your question just for the

22 first part, the question of the ownership.

23 MR. KARNAVAS: Okay.

24 JUDGE LIU: Maybe we'll come to the next two issues. One is about

25 control and the other is about responsibility.

Page 5077

1 MR. KARNAVAS: We are, Your Honour. We are. We're going step by

2 step here.

3 Q. Now, now that we have that in mind, in this area that you have

4 mapped out as zone of responsibility for the Bratunac Brigade --

5 A. No, sir, I didn't map it out. It's on the map.

6 Q. I agree. It's on the map that you have accepted --


8 MR. McCLOSKEY: Can Mr. Butler be allowed to answer the three-part

9 question? He was asked a question containing three parts on the fifth day

10 of cross-examination. To expect Mr. Butler to take apart three key parts

11 of this entire case is too much. And if he wants to set that question

12 aside and make that clear, fine. But I don't want it to come back and be

13 argued later on that Mr. Butler's answer had to do with responsibility

14 because that's the possible interpretation when left like this. Multipart

15 questions are a cancer to this system.

16 MR. KARNAVAS: Your Honour.

17 JUDGE LIU: Yes.

18 MR. KARNAVAS: I'm not going to respond to the Prosecution today.

19 I'm going to -- I'm going to refrain.

20 JUDGE LIU: Yes, please.

21 MR. KARNAVAS: I want that on the record that I'm refraining.

22 Q. Now, Mr. Butler, we've just covered this morning, and a little bit

23 yesterday, that in this area that the map that shows the zone of

24 responsibility for the Bratunac Brigade, a concept which you seem to agree

25 with, though it's not in the rules, you have indicated that in that area

Page 5078

1 you had the Main Staff operating, you had the Drina Corps operating, and

2 you had the Bratunac Brigade operating during this relevant period that

3 we're discussing. Correct?

4 A. You had the Bratunac Brigade operating. You had the Drina Corps

5 command and staff, elements of them there. And you had the Main Staff

6 commander there. So in that sense, they're all operating in that zone,

7 yes, sir.

8 Q. Okay. So the answer is yes.

9 Now, you indicated yesterday, and I think we covered it a little

10 bit today, that General Mladic was in command and control. Correct?

11 A. Yes, sir.

12 Q. Okay. In fact, you basically said yesterday that wherever he

13 goes, he's usually in command and control. I understand that was in a

14 loose sense that you said it. Correct?

15 A. General Mladic as the commander of the army is in command of the

16 army whether he's physically on the ground at a location or not.

17 Q. But in this instance and I think we covered this a little bit,

18 General Mladic is micro-managing, somewhat, is he not?

19 A. He is giving direct orders in a lot of cases; I guess that

20 qualifies as micro-management.

21 Q. Okay. But not only is he micro-managing, but he is directly

22 involved, directly involved, in negotiating with the UN, the DutchBat, as

23 well as the folks that were representing the Muslim population that had

24 gathered in Potocari. Correct?

25 A. Yes, sir.

Page 5079

1 Q. And he made all the decisions. Correct?

2 A. Yes, sir, he did.

3 Q. All right. He indicated what was on -- what was going to happen

4 next. Correct?

5 A. That is correct, sir.

6 Q. And in fact, he issued orders to that effect.

7 A. Yes, sir.

8 Q. Okay. And we talked about it a little bit because remember I

9 mentioned Pandurevic had that little concern about the 28th, and you are

10 quite right to say no, they were able to calm him down, to say let's not

11 go all the way to Potocari, let's hold off. He listened to them. But

12 then we know that after the second meeting, after the second meeting or

13 during the second meeting, a decision was made with respect to arranging

14 for the transportation of those who wished to leave out of Potocari and on

15 to the free territory. Correct?

16 A. Yes, sir. He made the decision I presume between the second

17 meeting and the third meeting because that's when you see the

18 manifestation of orders.

19 Q. Yes. And now we see a manifestation of orders that directly

20 reflect his intent.

21 A. Yes, sir.

22 Q. Okay. And those orders were passed down the chain of command.

23 Correct?

24 A. Yes, sir.

25 Q. And one of the orders, I don't know if we have a direct one, but

Page 5080

1 at least one of the orders, it would appear directed certain folks to go

2 to Potocari on that particular day. "Folks," what I'm talking about are

3 VRS. You don't need to read.

4 A. I guess what you're asking is -- we're assuming that it was

5 Mladic's direction was that members of the VRS were to go to Potocari.

6 Q. Couldn't put it any better than that.

7 A. Yes, sir, I agree.

8 Q. And I take it he had some orders -- he had given some orders with

9 respect to what would happen once they got to Potocari. Correct?

10 A. I don't know that. I'm not aware of -- there were some orders

11 with respect to the orders we do know that he gave Colonel Borovcanin with

12 respect to his forces entering Potocari. I'm not aware -- I'm trying to

13 think back, but I'm not aware of many instances that are coming to mind of

14 direct orders from Mladic to other army members with that respect.

15 Q. Well, according to Nikolic, if one is to believe him, members of

16 the 65th Protection Regiment, I believe, were there, and that would have

17 been at least a Main Staff asset. Correct?

18 A. Yes, sir, I do understand that. But I have with a video and

19 everything else, I have no evidence that puts them there.

20 Q. Okay. So he must either be mistaken or misrepresenting the truth

21 on that one?

22 A. Those are two options. And the third one is that he is correct,

23 and I have no evidence to corroborate it.

24 Q. Okay. So those are the universe of choices. And throughout the

25 years of your investigation, did you come across anything that would give

Page 5081

1 you the impression that they were, in fact, there because Momir Nikolic

2 tells us that he even was coordinating their actions as well as the

3 actions of others that were there? And I'm sure you read his testimony

4 before you came here.

5 A. I did read his testimony. And through the course of the

6 investigation, there is no evidence that puts the 65th Protection Regiment

7 in Potocari certainly on 12 July 1995.

8 Q. Nor is there any evidence that he was coordinating the

9 65th Regiment over there on that particular day, is there?

10 A. I guess that is the next logical conclusion to the fact that I

11 can't put them there. Yes, sir.

12 Q. Okay. Now, there were units from the Drina Corps, were there not,

13 over there?

14 A. For 12 July?

15 Q. Mm-hmm.

16 A. I don't believe so, sir.

17 Q. Okay. So if Momir Nikolic was saying he was also coordinating

18 those units that might be there, that would also be a misrepresentation,

19 maybe an honest mistake on his part, or maybe you just haven't come across

20 anything to verify Nikolic, "the coordinator" on that particular day in

21 Potocari, that and the next day?

22 A. On the 13th, some of the Drina Corps units, or at least one of

23 them -- elements goes through the city or through Potocari. But on the

24 12th, I don't believe that there were Drina Corps units per se in

25 Potocari. The staff officers of the Drina Corps were there --

Page 5082

1 Q. Drina Wolves?

2 A. There was one instance from a Dutch Battalion officer who I

3 believe -- he saw individuals who he believes might have been Drina Wolves

4 who might have been there on the 12th, but that's the only thing I've

5 heard of it. And that conflicts with the other evidence I have that puts

6 the Drina Wolves in the Bandera triangle with the remainder of the other

7 units on 12 July. So that's why there's not much coming to mind with

8 respect to Drina Corps units in Potocari on 12 July.

9 Q. What about the 10th Sabotage Detachment, I think that's the

10 correct -- or 10th Sabotage Division, I'm sorry?

11 A. That's a Main Staff asset.

12 Q. Were they there?

13 A. I don't believe so. I think that at least according to the

14 testimony of Erdemovic that the majority of them stayed in Srebrenica

15 because they were given a follow-on mission afterwards to clear the Sase

16 mine complex or the tunnel that runs from it to the town because they

17 believed that there might be things in there. I understand that maybe one

18 or two Dutch witnesses believe that they saw them there, but I believe

19 that they were in Srebrenica that day.

20 Q. Okay. Now, we're almost ready for our break, so we're going to

21 have to continue this issue about the prisoners and what have you. But

22 just one last question: It sounds to me, and I think the Trial Chamber

23 would be very interested in this, it sounds to me that from reading at

24 least that portion of Nikolic's testimony, you are befuddled because you

25 don't know, you don't have any evidence that would support that portion of

Page 5083

1 his testimony which he gave under oath before our Honourable Members of

2 this Trial Chamber. Would that be correct?

3 A. I'm sorry, I'm looking on the screen here. I'm not befuddled,

4 but I agree that there isn't evidence that would corroborate that

5 portion of his testimony.

6 Q. And there is no evidence to corroborate that, one might conclude

7 that it was a mere fabrication under oath normally known in the legal

8 parlance as perjury. Correct?

9 A. That is one conclusion that might be drawn, sir. I agree.

10 MR. KARNAVAS: Your Honour, I think at this point, because I'm

11 about to launch into another segment, and this might be a good time to

12 break.

13 JUDGE LIU: Yes, we'll resume at 12.30.

14 --- Recess taken at 11.58 a.m.

15 --- On resuming at 12.31 p.m.

16 JUDGE LIU: Well, Mr. Karnavas, before you start your

17 cross-examination, I think there's a scheduling ruling that this Trial

18 Chamber would like to make.

19 This morning, Ms. Sinatra asked for two days for the

20 cross-examination of this witness, which was unexpected by this Bench.

21 But we'll do our best to accommodate their request, if possible. So they

22 ask for two days. That will be six sittings, altogether 450 minutes for

23 their cross-examination. The time at their disposal for their

24 cross-examination is only 330 minutes at most, which means that it's more

25 or less about four sittings altogether. Is that all right, Ms. Sinatra?

Page 5084

1 MS. SINATRA: Your Honour, Mr. Stojanovic will be doing the cross.

2 But in all honesty, you know, the team from Mr. Blagojevic got five days

3 to cross, minimum, and maybe more. It's totally up to Mr. Stojanovic, but

4 I think that from looking at the material and working on the cross

5 together, I think he's going to need two full days. I'll let

6 Mr. Stojanovic address the Court on that matter since he's going to be

7 doing the cross, but there's a lot of material to cover in Mr. Butler's

8 report, and especially the annex including the Zvornik Brigade is most

9 important.

10 JUDGE LIU: Yes, Mr. Stojanovic.

11 MR. STOJANOVIC: [Interpretation] Thank you very much,

12 Your Honours. I have been waiting for six days to start my own

13 cross-examination. When we started out, I once told the Prosecutor that I

14 expected to have an opportunity to use up to one and a half days to

15 cross-examine this witness. This keeps changing on a minute-to-minute

16 basis. Depending on Mr. Karnavas's cross-examination, some of his

17 questions causing an overlap in relation to resubordination, control, and

18 command. I will be able to leave these questions out as a consequence.

19 But then again, I have several new areas that have cropped up that need

20 clarifying. I would like to use the transcript of Mr. Karnavas's

21 cross-examination of Mr. Butler to ask a number of questions of my own.

22 At any rate, I will fully observe the Court's decision. I hope I

23 can fit my cross-examination into one and a half days, or 330 minutes, as

24 you said, four blocks, four sessions. Roughly speaking, I think that's

25 the time I need to cross-examine this witness. As for our exhibits, we

Page 5085

1 have about 20 exhibits we are preparing to tender into evidence. We think

2 we can deal with this in a quick and efficient manner.

3 Mr. Butler's answers are very succinct. I don't think we'll need

4 to waste a lot of time going over the same questions. So my estimate is

5 that I can indeed manage to complete my cross-examination within the 330

6 minutes.

7 JUDGE LIU: Thank you very much indeed for your cooperation.

8 Mr. McCloskey, how much time do you think you need for the

9 redirect?

10 MR. McCLOSKEY: Very little as yet. 30 minutes, maybe an hour at

11 this point.

12 JUDGE LIU: But you have to leave some time for the Judges to ask

13 some questions.

14 MR. McCLOSKEY: 30 minutes is -- doesn't seem too long,

15 Your Honour. And I hope I don't go there because I think at this point

16 your questions are critical, of course.

17 JUDGE LIU: Thank you very much. Here's the scheduling order at

18 this stage for next week: Next week Monday, we'll sit in the Courtroom II

19 starting from 9.00 until 1.45 in the morning. I hope during this time,

20 Mr. Karnavas will finish his cross-examination. And in the afternoon, we

21 will continue to sit from 3.00 to 6.30. And then Mr. Stojanovic will

22 start their cross-examination. On Tuesday, it's a UN holiday; we do not

23 sit. On Wednesday, we'll start at 2.15 in the afternoon, continue the

24 cross-examination by Mr. Stojanovic. And in that afternoon, there are two

25 sittings allocated for the cross-examination for Mr. Stojanovic. So all

Page 5086

1 together, there will be 330 minutes for Mr. Jokic's Defence.

2 And for the last 75 minutes, we'll conduct the redirect, Judges'

3 questions, admission of the evidence. We'll send this witness home

4 Wednesday night.

5 On Thursday, we'll start in the morning session, from 9.00 to 1.45

6 in Courtroom II. On Friday, also in the morning, 9.00 to 1.45 in

7 Courtroom I. It is so decided.

8 Mr. Karnavas, you may continue your cross-examination.

9 MR. KARNAVAS: Thank you, Your Honour.

10 Q. Okay. Mr. Butler, we were discussing the issue of prisoners, and

11 we're trying to figure that conundrum as to whose prisoners they were.

12 Now, let me go back a little bit and cover some of the points that we

13 covered yesterday or the day before. As I understand it, we discussed

14 that the order that was issued by the Drina Corps of the 2nd, the

15 preparatory order, I believe, of July 2nd required or ordered that the

16 prisoners be dealt by the security sector. Is that correct?

17 A. The security section was given the authority to deal with the

18 issue of selecting the locations for prisoners and -- I mean, I'd like to

19 get to the exact phrase on that. That's why I'm not --

20 Q. Do you want to get that out?

21 A. If we have it, it would probably be the best thing. I don't want

22 to misstate that.

23 Q. To be honest, I wasn't planning on going to the actual document,

24 but we might be able to put our hands on it. Let me go to the next

25 document which would have been the order that was drafted by the commander

Page 5087

1 of the Bratunac Brigade. If you recall, we discussed that where it was

2 indicated that the prisoners that were, if any were to be captured by the

3 Bratunac Brigade, they would be taken to Pribicevac, and that's where they

4 would be stored or held until -- at least that's all we know. Correct?

5 A. Yes, sir. It was directed that any prisoners taken would be

6 brought to Pribicevac.

7 Q. And we indicated yesterday, did we not, that we have no knowledge

8 or no proof, nothing that would verify that any prisoners were indeed

9 captured by the Bratunac Brigade from the 6th to the 11th. Correct?

10 A. That is correct, sir. There's no data on that.

11 Q. Although to be fair with you and the record, you indicated that

12 there may have been; we just don't know. But certainly there's nothing

13 that would reflect either in the daily reports to the -- either the daily

14 reports to the Drina Corps or the Drina Corps daily reports to the

15 Main Staff that prisoners were captured by the Bratunac Brigade. Correct?

16 A. Again, sir, it's not reflected in the Bratunac reports, and we do

17 not have the Drina Corps reports. So I can't answer the second part of

18 that question.

19 Q. Okay. And throughout your investigation over all of these years,

20 yours and OTP's and everybody else involved, there has never been any

21 information, any documentation, nothing, in fact, that would reflect that

22 prisoners were captured by the Bratunac Brigade from the 6th to the 11th.

23 Correct?

24 A. Yes, sir, that's correct.

25 Q. All right. And that may be one strong indicator, would it not,

Page 5088

1 that would at least allow us to draw a conclusion that in all likelihood

2 there is no documentation anywhere because no prisoners were ever taken by

3 the Bratunac Brigade during that period of time. Correct?

4 A. Yes, that is an indicator, yes, sir.

5 Q. All right. Now, we have a situation that changes from the 11th

6 with respect to the overall situation in Srebrenica and in Potocari.

7 Correct?

8 A. Yes, sir, that is correct.

9 Q. All right. And from the -- sometime on the 11th, perhaps as early

10 as the 10th, I don't want to get into all the specifics, but at some point

11 the population of Srebrenica begins to move, those who haven't gone

12 in -- with the exception of the column, begin to move for security and

13 safety to where the UN DutchBat are located and they eventually find

14 themselves in Potocari. Correct?

15 A. Yes, sir. Most of the movement begins on the morning of the 11th

16 and continues through the day.

17 Q. And of course, we indicated that those who chose not to go there,

18 many of whom were members of the 28th Division, others who were not,

19 gathered elsewhere, and then began to go towards the free territory at

20 some point. And we usually or we have been referring to them as "the

21 column" for lack of a more precise term. Correct?

22 A. Yes, sir, that's correct.

23 Q. And we talked about briefly that on the night of the 11th and the

24 night of the 12th that there was some uncertainty as to where the 28th

25 Division was located, and this column. Correct?

Page 5089

1 A. Yes, sir, that's correct.

2 Q. At some point, there were some indicators as to where -- that a

3 column had been seen. And in fact, we discussed a little bit, and I think

4 we were able to come to a mutual conclusion that they were able to leave

5 the 1st, the 2nd, and the 3rd Battalion areas without incident. And by

6 that, I mean without coming into contact with the Bratunac Brigade.

7 Correct?

8 A. On 12 July -- or on 11 and 12 July, they did not come into contact

9 with these three battalions, yes, sir.

10 Q. And in fact, it is not until they get towards the 4th Battalion

11 that they seem to have been identified, the column, that is, and at some

12 point, I believe it's around the 13th or so, that we actually have some

13 contact, not necessarily with the 4th Battalion, but with the

14 Zvornik Brigade and the column. Is that correct?

15 MR. McCLOSKEY: Objection. That's a misstatement of the evidence.

16 MR. KARNAVAS: I'm asking the gentleman to give his answer,

17 Your Honour.

18 MR. McCLOSKEY: Not misstate the evidence. That is fundamental to

19 the process. There is evidence in this Court to the contrary of that.

20 Perhaps he's forgotten it. But that is a misstatement of the evidence.

21 MR. KARNAVAS: I'll rephrase.

22 JUDGE LIU: You may rephrase it.

23 MR. KARNAVAS: I'll rephrase.

24 Q. On the 11th, did the 4th Battalion attack the column? Yes or no.

25 A. No, sir.

Page 5090

1 Q. On the 12th, did the 4th Battalion attack the column? Yes or no.

2 A. No, sir.

3 Q. On the 13th, was there an attack by the 4th Battalion of the

4 Bratunac Brigade against the column? Yes or no.

5 A. There was contact, but not an attack.

6 Q. Okay. And what do you mean by "contact"?

7 A. It is my understanding that the 4th Battalion came into contact

8 with some members of the column and that at least one Bosnian Muslim was

9 taken prisoner by them on the 13th.

10 Q. That's correct. But other than that, there was no battle to speak

11 of between the 4th and the column on the 13th? And by that, what I mean

12 is as we know later on what's going to happen later on on the 14th and the

13 15th between the column and the Zvornik Brigade. Correct?

14 A. Yes, absolutely nothing of that intensity.

15 Q. All right. So at least on the 11th and the 12th, because now I

16 want you -- or the 12th and the 13th, I want to bring you back to

17 Potocari. It would appear, would it not, that the Bratunac Brigade has

18 not taken a single prisoner that we are aware of? Correct?

19 A. With respect to the members of the column, on the 11th and 12th,

20 that is correct.

21 Q. Now, what about with respect to what happened on the battlefield?

22 A. That is what I am referring to with "the column".

23 Q. Now, are you aware of any prisoners that were actually physically

24 taken by the Bratunac Brigade and then taken to Pribicevac on the 13th

25 where the commander had designated all prisoners should be taken in the

Page 5091

1 event they were -- any were captured?

2 A. Why would they take them to Pribicevac on the 13th?

3 Q. Well, I'm asking you --

4 A. I mean, no, they certainly wouldn't do that. By that point in

5 time, all operations had shifted away from Pribicevac and were at

6 Bratunac.

7 Q. So the answer is they didn't take any Pribicevac? I'm just doing

8 it by a process of elimination, sir.

9 A. Yeah, no, sir, I have no knowledge of that.

10 Q. Okay. All right. And do you have any knowledge of the

11 Bratunac Brigade on its own, and I'm not talking about the Drina Corps or

12 the Main Staff or any of them or any prisoners bought by them and taken

13 elsewhere. Were you aware of any prisoners captured by members of the

14 Bratunac Brigade on the 13th?

15 A. Again, the issue that I'm aware of on the 13th is the continued

16 separation of Muslim men in Potocari and their movement into Bratunac,

17 into facilities.

18 Q. Okay. Now, let's stick with that. We talked about earlier that

19 Mladic was in command and in control. Correct?

20 A. Yes, sir.

21 Q. Who ordered the separation of the men? Was it Colonel Blagojevic?

22 Was it General Krstic or General Zivanovic? Or was it General Mladic? Or

23 none of the above?

24 A. I believe that as a result of the third meeting on the morning of

25 the 12th, it was General Mladic who had indicated that men were going to

Page 5092

1 be screened for war crimes. So I guess that answers your question. It

2 would be General Mladic.

3 Q. And would it not be fair to conclude, then, since General Mladic

4 is there on the ground and in fact later on we see him in Potocari where

5 he's doing a photo op of such, and also making some statements for public

6 consumption, some of which -- some of which would have been heard by those

7 around him, including any military police from the Bratunac Brigade that

8 happened to be there as his guard and as the regulations warranted, okay.

9 Is it not a fact that at that point in time, that it's General Mladic that

10 is still in command and control of the situation?

11 A. General Mladic, again, he's always in command and control. And

12 the situation is occurring pursuant to his orders, yes, sir.

13 Q. All right. And so the question is who, who is responsible for all

14 of those people that have gathered in Potocari on that day?

15 A. At the highest level, it would be General Mladic.

16 Q. Who is there on the ground. Right?

17 A. Yes, sir.

18 Q. And is running the show?

19 A. He is indisputably directing traffic, yes, sir.

20 Q. And right beneath him you have the Drina Corps. Correct?

21 A. Yes, sir.

22 Q. And at some point it is the Drina Corps that is assisting at

23 least -- or I should say directing the movement -- I should say

24 facilitating, that's a better term, facilitating the exodus by

25 coordinating the buses incoming to Potocari, the fueling of the buses, and

Page 5093

1 of course having the women and children getting on the buses and

2 ultimately taken out of Potocari to a safer area. Correct?

3 A. In part, the Drina Corps rear services people were there and were

4 facilitating the buses and ensuring that they were fueled and getting them

5 to Potocari. For the second part of your question, getting on the buses,

6 I don't believe that those same Drina Corps officers were involved in that

7 process.

8 Q. Okay. And I understand you indicated also that MUP was there. Is

9 that correct?

10 A. Yes, sir. There was at least one company of the Jahorina MUP

11 training centre that had been there, and the Court has heard evidence on

12 that. And there was at least for a portion of the time the members of the

13 2nd Sekovici detachment of the MUP special brigade that were there.

14 Q. All right. Who made the decision, incidentally, for the men that

15 were separated to be taken, and to be secured in Bratunac? Who made that

16 decision? If you know.

17 A. I don't know the answer to that based on the documents or

18 intercept. And I know that some witnesses have talked about that, and I

19 will leave it at that. But I don't know.

20 Q. But you do know, you do know that it wasn't Colonel Blagojevic,

21 don't you?

22 A. I don't know that. I don't know that.

23 Q. Sir, given those who were there, given those officers that were

24 running the show, when we look at the chain of command process, or to put

25 it in a pedestrian fashion, the pecking order, clearly, clearly

Page 5094

1 Colonel Blagojevic, the commander of the Bratunac Brigade, was well below

2 on that order, wasn't he?

3 A. He was the third echelon commander, Mladic, the Drina Corps's

4 Zivanovic, and then him. He was the third echelon commander in this case.

5 Q. By your indication, his headquarters, in his headquarters, he was

6 hosting or they had taken -- he was hosting, let's leave it at that, the

7 Drina Corps and the Main Staff as well. Correct?

8 A. Yes, sir, that is correct.

9 Q. And the Main Staff as well as the Drina Corps could use the

10 facilities whenever they wanted. Correct?

11 A. Yes, sir.

12 Q. They could use his communications whenever they wanted?

13 A. Correct, sir.

14 Q. They could order his staff to a certain extent whenever they

15 wanted, could they not?

16 A. It depends on exactly what that certain extent is, and we've

17 discussed that. So I don't want to make it that broad. But they -- you

18 know, within their functional confines, they could direct his staff to do

19 things.

20 Q. All right. And when they wanted to, for instance, have something

21 sent and they wanted it coded so it could be sent off, they could do that

22 through the communications centre. Correct?

23 A. Yes, sir, I believe that's correct.

24 Q. All right. And so would it not be fair, sir, to conclude that for

25 all intents and purposes, Colonel Blagojevic as the commander of the

Page 5095

1 Bratunac Brigade during those days, while he may have been the commander

2 on paper, was hardly commanding anybody in Potocari on the 11th or the

3 12th or the 13th? Correct?

4 A. I disagree.

5 Q. All right. And he was hardly in control, was he?

6 A. I don't have evidence that suggests that he was not in command or

7 control of his subordinate units, and I've never suggested that he was in

8 command or control of units that weren't subordinate to him.

9 Q. And where were his subordinate units, sir? They were still out

10 there on that defensive, static line, were they not?

11 MR. KARNAVAS: Let him answer the question, sir.

12 MR. McCLOSKEY: It's a misstatement of the evidence. That's

13 fundamental. You cannot misstate the evidence.

14 JUDGE LIU: I believe that this question is very important to the

15 Defence. Let us hear what the witness is going to tell us.

16 MR. KARNAVAS: He can qualify the answer.

17 THE WITNESS: I believe that there is video evidence that shows a

18 number of individuals from the 2nd Infantry battalion in Potocari on the

19 12th. I believe some of that video evidence also shows members of the

20 Bratunac Brigade military police there on the 12th. So in that respect,

21 they were not all on the defence line. There were a number that were in

22 Potocari on the 12th.


24 Q. All right. Now, let's talk about the military police. We

25 indicated that some of them were there as a result of Mladic. Correct?

Page 5096

1 A. You had offered that possibility, and I said given that they are

2 guarding him, that that's a fair conclusion, yes, sir.

3 Q. What do you mean "given that I offered it and it's a fair

4 conclusion"? Let's be honest and let's be straight. Are they not there

5 to protect Mladic as they must be there?

6 JUDGE LIU: Yes, Mr. McCloskey.

7 MR. McCLOSKEY: Objection to the form of the question. And of

8 course if Mr. Karnavas is naturally leading the witness, that's what

9 Mr. Butler was referring to previously. There's nothing dishonest about

10 that. And the comments about "let's be honest," it's going to get worse

11 and worse. It's not helpful.

12 MR. KARNAVAS: It's less than accurate, Your Honour.

13 JUDGE LIU: Mr. Karnavas, your question, I believe, is quite

14 argumentative. Please rephrase your question.

15 MR. KARNAVAS: Very well.

16 Q. Are you suggesting, Mr. Butler, that there were no military police

17 there guarding Mladic as they were required to do in Potocari on that day?

18 Is that your answer?

19 A. No, sir. I am not meaning to suggest that.

20 Q. Okay. So if the answer is no, then those -- there were military

21 police from the Bratunac Brigade in Potocari as a result of a legal and

22 necessary function.

23 A. What I'm trying to do is just indicate that while that may be the

24 purpose of the presence of some military police, I'm not going to say that

25 that's the sole reason why they're there.

Page 5097

1 Q. Okay. In the military police, we already indicated what the

2 reserve, and they were not on that static line, that static defence line.

3 Correct? So we can exclude them from my previous question.

4 A. I don't understand, sir.

5 Q. All right. Well I indicated -- never mind.

6 A. The military police --

7 Q. Never mind.

8 A. -- Were never engaged in -- they were never engaged to my

9 knowledge therefore, they were never deployed in any of the battalion

10 sectors, so yes, they weren't engaged in the defensive positions.

11 Q. That's the point I was trying to make when I got the objection

12 from the Prosecutor, so I'm breaking it down. You injected military

13 police. So now we can conclude that some of those military police were

14 there as a result of Mladic. Correct?

15 A. Yes, sir, that's correct.

16 Q. Okay. There may have been others which we may or may not know why

17 there were there. And then you indicated that there are several members

18 of the Bratunac Brigade, several troops, and there we seem to have some

19 disagreement as to whether they were there on orders or whether they were

20 there on their own. Correct?

21 A. Yes, sir. In that respect, the disagreement is between the two

22 witnesses.

23 Q. Okay. Now, given -- in light of all of that, Colonel Blagojevic

24 is not playing any role in Potocari on the 12th or the 13th, is he, with

25 respect to these people that have gathered there? Some are bussed, and

Page 5098

1 then some are screened, and then taken to Bratunac?

2 A. Personally, sir?

3 Q. Yes.

4 A. I don't believe -- well one or two people have identified him

5 there. I don't offer that because I can't substantiate it. Certainly his

6 units were involved in a number of the activities, and perhaps the best

7 example is Major Trisic indicating that he was directed to bring food and

8 bread in a continuing series of trucks down to Potocari. So in that

9 respect, he was involved for the people.

10 Q. All right. And assuming he was involved, it sounds to me like

11 that was a humanitarian and kind act as opposed to something nefarious and

12 sinister?

13 A. Yes, sir, in that respect, it was.

14 Q. And again, just to make sure that I'm clear at least all of these

15 years of your investigation, you cannot tell us who ordered these people,

16 the ones that were screened and the ones that were bussed, put in buses

17 and remained in Bratunac and those who were put into the facilities there,

18 you don't know who made that order, who issued that order?

19 A. The obvious assumption is it would be General Mladic, but I don't

20 know who specifically gave that order.

21 Q. Okay. All right. Well, let's move on, then. I think we can move

22 on at this point.

23 I want to talk a little bit about security because it has come up.

24 And in fact, there was one particular piece of evidence that the Defence

25 was able to locate thanks to the cooperation from -- the use of OTP's

Page 5099

1 computer system where Ms. Tomanovic spent approximately 10 to 15 days

2 going through the computer and found what I believe has been marked as

3 P389. That's the instruction. If you can get it handy, we're not going

4 to go to it right away, but just get it handy to you have it there ready

5 to plop it up on the ELMO.

6 A. I don't have it here in this pile, sir, so...

7 Q. We have an extra copy, sir. And while I'm at it, I can give you

8 part of the transcript as well. The transcript will date to Tuesday 11

9 November 2003. I copied more than the relevant area for contextual

10 purposes lest there be any problems and in case you wanted to refer to a

11 particular section.

12 Now, before we get to this exhibit, there was an issue or there

13 was some discussion between you and the Prosecutor with respect to the

14 term "counter-intelligence." Do you recall that?

15 A. I believe so, yes.

16 Q. In fact, that was the point in time when I had stood up and

17 requested if you could provide us a place, the source, that would give us

18 an indication -- a definition of what "counter-intelligence" is. And in

19 fact, the President made the same request as a result of my request. Then

20 you were posed a question, and that's on page 4299 on line 22. And the

21 question was: "So for counter-intelligence, Mr. Butler, we haven't gotten

22 to the regulation yet, but there are definitions of counter-intelligence

23 and discussions of counter-intelligence in those regulations, aren't

24 there"? And the answer was: "Yes, sir, there are." And then there is

25 another question and no reference as to which regulations, where

Page 5100

1 specifically you had found a precise definition of counter-intelligence.

2 So for the sake of clarity, do you know offhand where you have

3 found a definition of counter-intelligence?

4 A. I believe the best source on that would be one of the documents

5 that's an annex in my report or a footnote in my report. And it's called

6 "The means and work of the intelligence and security services in the

7 armed forces." I think it actually goes into the nuts and bolts or the

8 tradecraft, even related issues with respect to that. So I think that

9 would be the most appropriate starting place to come up with that

10 definition.

11 Q. All right. And I take it that you could be -- you would be able

12 to put your hand on it, not right now but at some point after we break

13 today, put your hand on that piece of document and give it to the

14 Registrar to copy so we could study it over the weekend? The definition

15 now.

16 A. I'll try to find it. Yes, sir.

17 Q. Okay. All right. In any event, let's get back to this document.

18 Now, you were asked to give an analysis of the document. Do you recall

19 that?

20 A. Yes, sir, I was.

21 Q. All right. And in fact, Mr. McCloskey went paragraph by paragraph

22 and asked you to describe it and to analyse it and to give your reasoned

23 and expert opinion. Do you recall that?

24 A. Yes, sir.

25 Q. Okay. And first, if we could go to the top of the second

Page 5101

1 paragraph where it says: "With the aim of preventing..."

2 If we could put this on the ELMO.

3 MR. KARNAVAS: It's, for the record, P389.

4 Q. I'll just read. "With the aim of preventing these and similar

5 problems in control of the security and intelligence organs and creating

6 better conditions for their more effective use, I hereby issue the

7 following instructions."

8 Now, my question is: Is this instruction a control measure of a

9 sort?

10 A. Yes, sir, it is.

11 Q. Okay. Now, if we go to paragraph 2, and if we were to trace your

12 testimony, which can be found on page 4311, if you could look at it -- do

13 you have it? 4311.

14 A. Almost there.

15 Q. It begins on line 5. You can just look at it. You don't have to

16 put it on the ELMO yet. And I think if you go to the following page at

17 line 3, I think we will see that the entire question-and-answer process

18 with respect to this paragraph is contained within these lines. Would you

19 agree with me?

20 A. Yes, sir, I believe so.

21 Q. Okay. And at some point, you commented, after the first paragraph

22 of your answer, from line 11 to line 18 -- you can put this on the ELMO if

23 you wish. I don't want to read it, but if you could look at it, and I

24 will just give a general description of it. Basically what you do is

25 analyse the first paragraph that's contained in paragraph number 2 of this

Page 5102

1 instruction, P389. Correct?

2 A. Yes, sir.

3 Q. And then there is a note by you where you have some problems with

4 respect to, I believe, whether a law exists.

5 A. Yes, sir.

6 Q. All right. And just for the record, I thought it might help if

7 you could look at P84. If I could have the kind assistance of

8 Madam Usher. If you look at it, you will see it's just the relevant page

9 from P84. It may require a number. In fact, I am told that it does. So

10 this would be D84 for identification purposes. This is from the rules of

11 service. Obviously you're acquainted with that, are you not? Rules of

12 service of security organs?

13 A. Yes, sir.

14 Q. If we turn the page and we go to page 30, go to paragraph 83, it

15 would appear -- why don't we just read it for the record. It says: "In

16 an imminent threat of war or mobilisation, security organs proceed

17 according to the provisions of these rules, special instructions, internal

18 mobilisation documents, mobilisation rules, rules of combat and other

19 rules of regulations that regulate the work of these organs and the orders

20 of competent military officers adapting their own activity, methods and

21 means of work to the conditions of the mobilisation."

22 Having read that, would it not appear that perhaps this

23 instruction that we have here is the result of paragraph 83 of the rules

24 of service?

25 A. No, sir.

Page 5103

1 Q. Okay. Well, let me ask you this: Perhaps I'm misphrasing it.

2 Would you agree with me based on what I just read that General Mladic had

3 the authority to issue this instruction?

4 A. Yes, sir.

5 Q. And would you agree with me that this instruction had to be

6 complied with or by those beneath him?

7 A. Yes, sir.

8 Q. All right. Now, if we just look at your -- I couldn't

9 help -- let me -- let me keep my thoughts out. If we look at your answer,

10 one would conclude that you omitted in commenting about the second

11 paragraph that's contained within paragraph 2. And let's read it and see

12 what, if anything, we might be able to conclude. It says: "Furthermore,

13 all members of these organs and services are authorised by law to act in

14 work on tasks from their field of work analogous" - I underscore that a

15 little bit, I emphasise it - "analogous to the authority of the members of

16 the RS, the Republika Srpska, MUP, Ministry of the Interior, State

17 Security Department." Do you see that?

18 A. Yes, sir.

19 Q. All right. Now, if you look at your answer, would you agree with

20 me that you failed to comment about that aspect of paragraph 2 when you

21 were given the opportunity to do so by the Prosecutor?

22 A. Yes, sir, clearly it's missing. I'm not sure what the relevance

23 is, but okay.

24 Q. We're going to get to that. We're going to get to that slowly.

25 It would appear at least from reading it that through this

Page 5104

1 paragraph, the security branch now within the military is going to be

2 treated analogous to the State Security Department of the Ministry of the

3 Interior. Does it not appear that way?

4 A. No, I don't read it that way. I believe it basically says they

5 are authorised to act by law -- or authorised by law to act and work on

6 tasks from their field of work analogous to the authority of members of

7 the RDB. Yes, sir. It's not a treatment issue.

8 Q. All right. Well, some would claim that what is contained in this

9 paragraph is the beginning of creating an institution within an

10 institution.

11 A. I would disagree with that.

12 Q. All right. Do you know how the state security organ normally

13 works?

14 A. I have some very limited knowledge of it. I don't have a lot of

15 the details of it.

16 Q. All right. So you can't help us out at all on what might they be

17 doing?

18 A. My understanding of the State Security Department in this respect,

19 we call it the RDB, is that they are primarily engaged in the collection

20 of intelligence-related information, as we've indicated or as we've seen

21 in the previous reports, exhibits, they're collecting intelligence. And I

22 believe they also have the state counter-intelligence role and

23 responsibility.

24 Q. Secret police. Does that come in mind, that term?

25 A. That not a term I would use, but state security, not secret

Page 5105

1 police.

2 Q. Okay. State security. I guess I'm trying to help you out.

3 Aren't they really a police that is acting like a secret police? They're

4 out there underground, more or less, doing clandestine work, collecting

5 information. Correct?

6 A. They're collecting information. They are doing clandestine work.

7 I'm just not making the next jump to secret police.

8 Q. Let me ask you this: Did the security organ or -- did the State

9 Security Department in the former Yugoslavia have any particular sort of a

10 reputation?

11 A. Yes, sir, they did.

12 Q. And was that one that would conjure up any particular image or

13 vision that comes to your mind at this point?

14 A. Yes, sir. The former -- they would probably qualify as your

15 definition of the -- what is it? The secret police.

16 Q. Okay. And was that benevolent society of police officers?

17 A. I guess that entirely depends on whether you're holding the leash

18 or not.

19 Q. Okay. But for the ordinary citizen, who would that conjure up?

20 A. That would conjure up fear.

21 Q. Okay. And so now we have -- the security organ is to be accorded

22 the same authority and act analogous to the State Security Department

23 within this military institution. Correct?

24 A. That is what the document says, yes, sir.

25 Q. All right. So that's why I asked you does not this paragraph give

Page 5106

1 us the impression that Mladic himself is trying to create an institution

2 within an institution?

3 A. No, the reason why I disagree is because to my knowledge, the

4 Republika Srpska RDB did not function as a secret police. I mean, I think

5 by your own definition the fact that the secret police were so feared,

6 when the SDS created their own party and then subsequently the state

7 evolved around it, nobody wanted an institution like that which would

8 birddog them. So again, I have no evidence that the RDB functions like

9 that, and because I don't I can't make the conclusion that the military is

10 going to function as a gestapo.

11 Q. Just as an aside, since you're with the Prosecutor's Office, do

12 you know if they are trying to tie in the State Security Department of

13 Serbia in the Milosevic case as being involved in Bosnia?

14 A. From 1992 to 1995?

15 Q. Yeah.

16 A. Yes, sir.

17 Q. Okay, thanks. Now, if we go on to paragraph 3, now incidentally,

18 before we get there, was there any particular reason why you chose to

19 totally ignore commenting on this, not even giving us an aside?

20 MR. McCLOSKEY: Objection, Your Honour. That is a misstatement of

21 the facts. There's no indication he totally ignored anything. And it's

22 just argumentative.

23 JUDGE LIU: Yes. Mr. Karnavas, put your question another way.

24 MR. KARNAVAS: I will, Your Honour. I will.

25 Q. Is there any particular reason why you failed to note about this

Page 5107

1 particular paragraph when you were directly asked by the Prosecutor with

2 whom I assume that I sat down and analysed this and talked about what this

3 document might mean, why it is that this portion of paragraph 2 was

4 so -- was left out of your commentary?

5 A. Well, sir, again, I didn't -- the same reason before, I didn't

6 think it was relevant. And since I didn't attribute the same meaning to

7 the RS RDB as you did, it isn't relevant. Strictly in my mind they have

8 the same rights and privileges with respect to their duties. I now see

9 that given the slant that you put on it where it would be relevant, and I

10 assume that's why we're bringing it up. But for my direct testimony, I

11 don't see it as relevant.

12 Q. Okay. All right. The slant, might that be it's helpful to my

13 client, Colonel Blagojevic, and it's against the Prosecution? Might that

14 slant being my slant, that it doesn't really help your case?

15 A. No, sir. The slant that I'm referring to is that, you know, your

16 affiliation with -- of the RDB in the same vein as a secret police

17 organisation.

18 Q. Okay.

19 A. That's all.

20 Q. All right, all right. Now, we go to paragraph 3. And if we flip

21 the page, and if you could assist us with the ELMO, too. Page 4312. This

22 is rather short. It would appear that -- the question is on line 3. And

23 you devote approximately four lines to this, perhaps five. And so maybe

24 we can read along.

25 Line -- you're asked a question on line 3.

Page 5108

1 Q. In paragraph 3, what is that?

2 A. Paragraph 3 sets the framework that obligates all

3 members of the armed forces, the VRS in this case, VRS institution

4 commands and other members to provide assistance to the organs in the

5 realisation of their intelligence and security tasks and to not take any

6 actions which could endanger those type of tasks.

7 Q. All right. What else in this document do you find of

8 significance?

9 And then you go to paragraph 4. Do you recall giving us that

10 answer, having been posed that question by Mr. McCloskey back on 11

11 November 2003? Do you recall that?

12 A. Yes, sir.

13 Q. All right. Now, I want you to please focus your attention to the

14 second paragraph within paragraph number 3. We can put that on the ELMO.

15 A. It's on the ELMO, sir.

16 Q. Okay. All right. Thank you for anticipating the situation here

17 on the ground.

18 It says: "At the same time" - at the same time - "to the extent

19 and in the measure necessary, members of the security and intelligence

20 organs must provide their immediate superiors with information,

21 assessments, and observations regarding the security of units or

22 institutions."

23 Question: Would you agree with me that in your explanation of

24 paragraph 3, you failed to comment on this particular portion of paragraph

25 number 3?

Page 5109

1 A. Yes, sir, it's not in there.

2 Q. It's not in there because you failed to comment on it. Right?

3 A. That is correct, sir.

4 Q. Now, let's go step by step. It seems to be a little bit of a

5 discussion regarding reciprocity here. If we go back to the first portion

6 of the paragraph on the first page it, starts with: "It is the obligation

7 of all VRS..." In other words, no discretion. Correct?

8 A. Yes, sir.

9 Q. All right. "Shall," "must." Would you agree with me?

10 A. That is correct, sir.

11 Q. Okay. If we turn to the next paragraph, and this is where it is

12 rather interesting, it doesn't start with "it is the obligation" or "at

13 the same time it is the obligation." But rather says: "At the same time,

14 to the extent and in the measures necessary," and from this can we not

15 conclude that here it is up to the security organ and that -- the security

16 and intelligence organs to determine what extent and when necessary?

17 A. Yes, sir. That is a function of the security officer.

18 Q. In other words, they have the discretion to choose when it is they

19 are going to provide their immediate superiors with information,

20 assessments, and observations regarding the security of units or

21 institutions. Correct?

22 A. I don't quite read it like that. I read it more on the lines of

23 that they are expected when they receive information or intelligence, that

24 they provide that -- that are relevant to their superiors, that they

25 provide it. When they receive information that is not relevant, that

Page 5110

1 that's not information that has to be provided. I don't -- it's not an

2 optional issue. I believe it is -- again, assuming the security officers

3 work within the confines of, you know, their -- the rules and regulations,

4 there are certain pieces of information that wouldn't be going to the

5 commander and the superior and that the security officer would retain for

6 himself.

7 Q. Okay. Let me just break it down so we can all understand that

8 answer. You say "relevant," "when it's relevant." What do you mean by

9 "relevant"?

10 A. For example, when an intelligence or security officer, based on a

11 prisoner-of-war interrogation, gets information about enemy troop units or

12 locations or intentions, that is a piece of information that I believe

13 would be something that would be relevant and would be a piece of

14 information passed to the commander.

15 Q. Okay. And who determines what is and is not relevant?

16 A. Under these rules and regulations, that is under the purview of

17 the security officer.

18 Q. And since they hold the key to that vault, it would be only when

19 they decided what is or is not relevant that -- that the immediate

20 superior would be informed. Correct?

21 A. Well, with respect to immediate superior, in this particular case

22 or this contextual case, I take the immediate superior to be the

23 commander. Under the same regulations, they will always be informing

24 their immediate superior within the functional chain.

25 Q. Thank you. That was my next -- that was my very next question.

Page 5111

1 So that in other words what you're saying to us, to put it in an example

2 form, Nikolic would decide what is relevant for his immediate commander,

3 Colonel Blagojevic, is to know. Correct?

4 A. Yes, sir, that is correct.

5 Q. But he would inform or there would be that functional command

6 between Nikolic and Popovic, Nikolic and Beara, and so on. Correct?

7 A. The chain would run from Nikolic to Popovic. And again it's done

8 so with the respect to functional command, Popovic would receive the same

9 information and arguably he may decide that despite a subordinate's

10 judgement, that this is something that needs to go around to other people.

11 Q. You're right.

12 A. So that is why the system is designed as it is.

13 Q. And it could be the converse. See, I'm trying to get you to give

14 us the other side. And conversely, they could say this is the kind of

15 information we do not want you to share with your superior. Right?

16 A. With respect to the work and means of the branch, there is

17 information that is not shared, yes, sir.

18 Q. See, I want to pin you down because when it hurts me, you have no

19 problem. And I'm trying to get you to acknowledge that in cases --

20 JUDGE LIU: Yes, Mr. McCloskey.

21 MR. McCLOSKEY: We're getting into all these personal feelings.

22 We're getting into wrestling terminology. This is argumentative.

23 MR. KARNAVAS: Very well, Your Honour. I'll rephrase.

24 JUDGE LIU: Yes, I agree.

25 MR. KARNAVAS: I'll rephrase. Heart be still.

Page 5112

1 Q. Would you acknowledge, in just a very direct way, that it could

2 work just the other way as well? Beara could tell Popovic not to share

3 this information with Krstic, and Popovic could tell Nikolic "don't share

4 this information with Blagojevic"? Isn't that just -- doesn't it work

5 that way as well?

6 A. Yes, sir. And I believe that I tendered an exhibit which showed

7 just that happening.

8 Q. All right. Okay, well, I wanted to be clear on this matter.

9 Now, just, again, I'm trying to figure this one out. Is there any

10 reason why you didn't volunteer this information when you were given an

11 opportunity to comment on paragraph 3? Albeit it does affect the Defence

12 in a positive way.

13 A. I believe -- I don't believe that it's a question of that. It

14 just reflects material that is already listed in the JNA security

15 regulations.

16 Q. Sir --

17 A. I don't believe there was anything wrong by omission. The

18 document was on the ELMO for everyone to see.

19 Q. But you were asked to comment on it, sir. You were asked to give

20 us your analysis. You have come here as the analyst who analysed and

21 synthesised. And all I'm trying to point out here is here's another

22 example where perhaps your analysis could have been of some assistance.

23 And yet, you deprived us of that assistance. And now I'm prying it out of

24 you. Would you agree with me?

25 JUDGE LIU: Yes, Mr. McCloskey.

Page 5113

1 MR. McCLOSKEY: Your Honour, I mean, how much is enough? Prying

2 it out of him. Pinning him down. I could go on and on. It's absurd.

3 JUDGE LIU: Well, Mr. Karnavas --

4 MR. KARNAVAS: Paragraph --

5 JUDGE LIU: -- It's really argumentative. Try to ask a very

6 simple question. I know your point. Try to ask --

7 MR. KARNAVAS: I'm sugar-coating this, by the way, Your Honour.

8 JUDGE LIU: I don't think it's sugar-coating.


10 Q. Let's go on to paragraph 4. Now, on paragraph number 4, on the

11 second, the second paragraph, in the second sentence in the paragraph, it

12 says: "The manner in and extent to which the commander or other organs of

13 the command shall be informed about the contents of these telegrams or

14 mail shall be regulated exclusively by the appropriate security and

15 intelligence organs." Do you see that?

16 A. Yes, sir.

17 Q. All right. Now, I just want to -- you did comment on this. And I

18 want to commend you, first of all. And secondly, you said, on the next

19 page -- on page 4313, you use the term "need to know" -- "on a basis of

20 need to know." That was your term. Do you see that? On page 4313, line

21 1. "Need to know."

22 A. Yes, sir.

23 Q. All right. And that sort of in that nice little catchy phrase

24 encapsulates the essence of paragraph 4. In other words, the security

25 organ is going to decide on its own the extent to which their immediate

Page 5114

1 commander, the immediate superior, is going to be provided with

2 information.

3 A. Yes, sir, with respect to the tasks on the -- in the instruction,

4 yes. It dovetails that the Main Staff is where you have the coalescence

5 between the operative and command and the security branch. So while it

6 goes up the security channel, it doesn't hit the operator; it hits at the

7 Main Staff.

8 Q. Okay. So in other words, to put it bluntly, Nikolic decides what

9 his immediate superior, that is, Colonel Blagojevic, needs to know.

10 A. With respect to the functions in this instruction, yes, sir, he

11 does.

12 Q. All right.

13 A. Or he recommends it at least to his superior Popovic if he doesn't

14 have the authority himself to release it.

15 Q. Right. So when he's working with Popovic and when he's working

16 with Kosoric, because this also seems to reflect intelligence as well, and

17 when he's working with Beara, it would seem, would it not, that unless

18 instructed otherwise by Popovic, Kosoric, or Beara, the sole discretion on

19 what his superior Colonel Blagojevic will know will be left up to him.

20 Correct?

21 A. With relation to these tasks, yes, sir.

22 Q. And a lot of these tasks on a need-to-know basis come under the

23 umbrella of what is commonly referred to as "counter-intelligence."

24 Correct? That's one of the times when they have that discretionary power?

25 A. Yes, sir.

Page 5115

1 Q. And counter-intelligence, would you not agree with me, and you did

2 provide us with a description of it, but counter-intelligence, it's more

3 like you know it when you see it, isn't it?

4 A. Actually, the process of counter-intelligence is fairly well

5 regulated within the context of the JNA rules and regulations in that

6 respect.

7 Q. The problem is, Mr. Butler --

8 A. The information you may know it when you see it, but --

9 Q. Okay.

10 A. I'd just like to say that I don't know that that's the best phrase

11 that I would use, "you know it when you see it".

12 Q. Okay. But if, for instance, I was the security officer, the

13 assistant commander for security and intelligence or the head of security

14 and intelligence. I don't know if he was actually wore that title because

15 it was a light infantry brigade. I would determine what would be -- what

16 would constitute counter-intelligence.

17 A. Yes, sir, the security officer would do that.

18 Q. And in fact, if his commander would say to me, Karnavas, what are

19 you up to? I could say: "I'm involved in counter-intelligence. You know

20 better than that." That would be enough for my commander to walk away.

21 Correct?

22 A. Yes, sir. I mean, if he had informed him of that and

23 Colonel Blagojevic or any other commander would understand that if you

24 wanted to know what he was doing at that point, you didn't have a right

25 to, so to speak, badger that officer, but you had the right to go to his

Page 5116

1 superior. And you may or may not get the same answer.

2 Q. And that's assuming -- that's assuming that I would go to my

3 commanding officer because I don't need permission or I'm not required to

4 inform my immediate superior that I'm engaged in whatever I believe to be

5 counter-intelligence activity. Correct?

6 JUDGE LIU: Mr. McCloskey.

7 MR. McCLOSKEY: Could we get the rank of the soldier Karnavas in

8 this hypothetical.

9 MR. KARNAVAS: I indicated that I'm the head of security and

10 intelligence. I'm the assistant commander.

11 JUDGE LIU: Well, Mr. Karnavas --

12 MR. KARNAVAS: In a brigade.

13 JUDGE LIU: I understand. But this question is quite

14 hypothetical. Unless it's related to a specific case in our present

15 sitting, otherwise, you know, it's very difficult for us to --

16 MR. KARNAVAS: I will use Nikolic.

17 JUDGE LIU: Yes.

18 MR. KARNAVAS: I understand he's within our facilities here today.

19 Q. Nikolic was the chief of security and intelligence for the

20 Bratunac Brigade. Correct?

21 A. Yes, sir, that is correct.

22 Q. Now, he would not need to inform his commander that he's engaged

23 in counter-intelligence; hence, he was going to go off and do whatever was

24 necessary for his tasks. Correct?

25 A. No, his commander may know that he's involved in

Page 5117

1 counter-intelligence-related tasks. But under these instructions and the

2 broader regulations, the commander has no right to inquire as to the

3 specifics.

4 Q. And there's no obligation - that's what I want to get to - that

5 there's no obligation on Nikolic to inform him commander. Correct?

6 A. With respect to the specifics, you're right, sir, there's no

7 obligation.

8 Q. In fact, it would be contrary to the whole concept of

9 counter-intelligence; the whole point of it is to keep it a secret.

10 Correct?

11 A. Yes, sir, that's correct.

12 Q. So you're not going to tell your commander, "I'm involved in

13 secret counter-intelligence activity. You're not supposed to know, but

14 just so you know, that's what I'm doing." That defeats the entire

15 purpose. Correct?

16 A. That is correct. And that's not something that you would expect

17 to see.

18 Q. Okay. Now, I know that I'm almost out of time. I think I have

19 about a minute. Just out of curiosity, in reading Nikolic's statement, we

20 see, and I think I pounded this point fairly hard, that he wasn't, on the

21 6th, 7th, 8th, 9th, 10th, and 11th, he had absolutely no contact with

22 his commander who was at Pribicevac while he was back in the headquarters

23 of Bratunac Brigade. Did that cause you any discomfort as to -- maybe not

24 discomfort, but did that cause you any curiosity as to why this particular

25 officer, the head of security and intelligence during the most important

Page 5118

1 military campaign of that particular brigade and perhaps of the

2 Drina Corps during that period of time was nowhere to be seen and had no

3 contact with his commander? Did that cause you any concern?

4 A. Mr. Karnavas, I believe it's quite unlikely that he didn't during

5 that period. I would be very surprised if ultimately it turns out that

6 during that six-day period he had no contact with his commander.

7 Q. Assuming, assuming that he told us on that occasion the truth - in

8 other words, that he had no contact - could we not conclude based on your

9 military experience and your reading of the rules that here we are dealing

10 with an individual who does whatever he pleases, particularly because of

11 his position as being the chief of security and intelligence? Can we draw

12 that conclusion, sir?

13 A. I don't know that he does whatever he wants. While I understand

14 that in interviews with other officers of the brigade, they may

15 acknowledge that he is engaged in activities that they're not aware. I

16 don't take that as whoever he wants. He is still part of, by regulation

17 and by this instruction, a member of the commander's inner circle, and he

18 still has to report his activities at least to the superior security

19 officer. So I wouldn't go as far as he does whatever he wants. But he

20 does have a certain amount of latitude.

21 Q. And that would mean being absent for all that period of time?

22 That doesn't bother you at all?

23 A. Again, as I noted, if that turns out to be -- I don't think that

24 that's the case. I would find it very unrealistic that he would be absent

25 or not in contact with his commander during those critical days. That

Page 5119

1 would surprise me very much.

2 Q. Well, that were his testimony, then he must have committed perjury

3 on that one as well. Correct?

4 MR. McCLOSKEY: Your Honour, objection. This is -- the Court can

5 come to its own conclusion on these sorts of issues. And I think it's

6 readily clear --

7 MR. KARNAVAS: I have no more questions.

8 MR. McCLOSKEY: -- and I don't think he testified that he was

9 absent, so it's full of nonsense.

10 MR. KARNAVAS: I think I made my point, Your Honour.

11 JUDGE LIU: Yes.

12 MR. KARNAVAS: I think I made the point quite well.

13 JUDGE LIU: So we'll break now, and we'll resume, as I said,

14 Monday 9.00 in Courtroom II.

15 --- Whereupon the hearing adjourned at 1.50 p.m.,

16 to be reconvened on Monday, the 24th day of

17 November, 2003, at 9.00 a.m.